New Brunswick Duty to Accommodate

Duty to Accommodate

To accommodate means to modify or adjust policies, practices and facilities to eliminate their discriminatory effect.

Duty to accommodate rights and obligations are legislated under three NB provincial Acts:

• Workers’ Compensation Act (WCA)
• Employment Standards Act (ESA)  
• Human Rights Act (HRA)

Leaves provided under the ESA and Return to Work under WCA are minimums only; it is important to note that the duty to accommodate under HRA often provides more extensive rights

Employers must go beyond treating everybody the same. To avoid adverse effect discrimination, an employer must specifically accommodate the 14 personal characteristics listed in the HRA, unless this would cause the employer undue hardship or require it to sacrifice its legitimate objectives.

Duty to accommodate workers with a disability

Employers and unions have a duty to accommodate workers with a disability so that they may be hired and retained. This duty applies to all aspects of employment, including hiring, job descriptions, facilities, and equipment, as well as return-to-work after an injury or illness that constitutes a disability.

Some examples of accommodations:

• Purchase or modify computers for use by employees with visual or other impairments.
• Provide wheelchair ramps and accessible bathrooms.
• Modify job duties (light duties).
• Rebundle job duties.
• Alter job schedule.
• Provide time off for medical appointments.
• Allow for part-time hours, full-time hours, or flex-time.
• Accept some degree of absenteeism due to a disability.
• Move employee from night shift to day shift.
• Transfer employee to a different position.
• Offer rehabilitation.
• Offer training.
• Hire an assistant or a temporary replacement.

These accommodations are not required in every case. What is required, and what constitutes undue hardship, depends on several factors (see below.)

Return to Work

Employees who return to work after an absence related to one of the 14 personal characteristics listed in the HRA have:

• A right to return to their original job, if possible, without loss of pay, benefits or seniority.
• A right to a modified or alternate job without loss of pay, benefits or seniority.
• A right to reasonable accommodation from both their employer and union so that they may return to their original job, or a modified or alternate job.

While the WCA has one or two-year time frames for the re-employment obligation, there is no fixed period in human rights law as to how long an employer must hold a position open for an employee with a disability in order to meet its duty to accommodate. It depends on what would constitute undue hardship, which depends on the facts of the case, including:

• The prognosis for full or partial recovery.
• The rehabilitation efforts of the employee.
• The nature and scope of the job.
• The size and financial resources of the employer.

It should be noted that in human rights cases the duty to accommodate may extend beyond the period an employer is required to hold a worker’s position available under the WCA or the ESA. Also, moving the employee to a lower paying job is not acceptable as accommodation.

Limits to Accommodation

The Meiorin test: The limits to the duty to accommodate were set out by the Supreme Court of Canada in the Meiorin case in 1999.  According to the Meiorin test, an employer’s rule (a policy, practice, job description, etc.) that has a discriminatory effect is nevertheless valid when three requirements are met:

1. The purpose of the rule is rationally connected to the job.
2. The rule was adopted in good faith and with the belief that it is necessary to that purpose.
3. The rule, in fact, is reasonably necessary to accomplish that purpose or goal, that is, accommodation is impossible without causing undue hardship to the employer.

Undue hardship The key element of the third requirement of the Meiorin test is undue hardship. What constitutes undue hardship will vary from one case to the next, depending on numerous factors that should be applied with common sense and flexibility. Undue hardship may take the form of impossibility, serious risk or excessive cost, for example. The most common factors are:

• Safety: Objective medical evidence of the likelihood of injury or serious health and safety risk is needed to prove undue hardship. Potential increases in workers’ compensation premiums or the mere prospect of increased exposure to liability will not amount to undue hardship.
• Cost: According to the Supreme Court, costs will amount to undue hardship if they are: quantifiable, shown to be related to the accommodation and so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability. Costs must be thoroughly checked and quantified.
• Impact on co-workers and customers: An accommodation may be found to cause undue hardship if it significantly interferes with the rights of others, or discriminates against them.

When an employer against which a human rights complaint has been filed claims that the accommodation in question would have caused undue hardship, the HRC will take into account a variety of factors, including the following:

• The extent to which the inconvenience would prevent the employer from carrying out the essence of its business.
• The costs to the employer, taking into consideration its size and financial situation.
• The employer’s capacity to absorb the cost of revenue lost from the measures taken, to the extent that they are not offset by increased productivity, tax exemptions, grants, subsidies or other gains.
• The employer’s ability to absorb the cost of modifying premises or equipment, and the ability to amortize such costs before implementing planned changes to ensure accessibility.
• The employer’s ability to absorb the cost of retrofitting in light of plans to move to accessible premises.
• The scope of the demands made on other workers or customers of the business.
• The fact that a proposed accommodation cannot significantly interfere with the rights of others, or discriminate against them. The interchangeability of the employer’s workforce and the safety of the complainant and others involved can have an impact on the ability to accommodate.
• Costs such as overtime, special leave, or costs in responding to a threatened grievance are not necessarily considered as undue hardship, nor is minor disruption of a collective agreement. However, a substantial departure from the normal operation of a collective agreement may amount to undue interference with a business.

Employer Duty (and Right)

• The Duty to Accommodate requires co-operation from employees.  Employees must, for example, provide all necessary information about their restrictions, and must consider in good faith accommodation solutions proposed by the employer.  The Union should also be a party to accommodation discussions (at the request of the employee).  Sometimes, the application of Collective Agreement provisions must be modified to facilitate an accommodation. 
• Ultimately, it is the employer's responsibility to determine an accommodation plan that fully and adequately meets an employee's restrictions.  This does not oblige the employer to craft a "perfect" accommodation, however, and an employee is not entitled to insist upon a preferred accommodation if an alternative would address that employee's restrictions.