Supreme Court Clarifies Employers’ Duty to Accommodate
In the recent decision of Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureaux d’Hydro-Québec, section locale 2000 (SCFP-FTQ), the Supreme Court clarified the scope of an employer’s duty to accommodate when terminating an employee for disability-related absenteeism.
The employee had worked for Hydro-Quebec for 24 years. Between 1994 and 2001, despite the employer’s attempts to accommodate her, she missed a total of 960 days of work due to a variety of physical and mental disabilities. After obtaining expert reports from three psychiatrists, the employer concluded that the employee was unable to work on a regular and reliable basis and therefore terminated her for excessive innocent absenteeism.
The employee grieved her termination. The arbitrator dismissed the grievance on the basis that the medical information confirmed that the employee would likely continue to miss work in the foreseeable future. Furthermore, the arbitrator concluded that the accommodation measures suggested by the union would constitute undue hardship for the employer. The Quebec Superior Court dismissed the union’s motion for judicial review of the arbitrator’s decision.
The Quebec Court of Appeal allowed the union’s appeal, setting aside the arbitrator’s decision on the basis that it was not “impossible” for the employer to accommodate the employee and that the duty to accommodate must be assessed at the time of the decision to terminate the employee.
The Supreme Court of Canada overturned the decision of the Court of Appeal. In a unanimous decision, the Court discussed the interpretation and application of the Meiorin test, which determines whether an employer has met its duty of reasonable accommodation. The Supreme Court found that the Court of Appeal had erred in concluding that the third part of the Meiorin test required evidence that it was impossible for the employer to accommodate the employee. Rather, the issue is whether it is impossible for the employer to accommodate the employee to the point of undue hardship. At paragraph 17 of its decision, the Supreme Court states:
[…] in a case involving chronic innocent absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will remain unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.
The Supreme Court found that the Court of Appeal had erred by assessing the duty to accommodate at the time when the employer made the decision to dismiss the employee. Rather, the duty to accommodate must be assessed globally, and take into account the entire history of absenteeism and accommodation.
Based in part on the employer’s past attempts to accommodate the employee, and her continued absenteeism, the Supreme Court found that the employer had reached undue hardship, and upheld the termination.
The Supreme Court has finally clarified that the employer’s duty to accommodate is not endless, and confirms that the goal of the duty to accommodate is to ensure that the employee who is able to work can do so:
“In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.”
The decision makes it clear that, in cases of disability-related absences, employers are required to find accommodative measures which will assist the employee in returning to work. Accommodation measures are to be tailored to the specific needs of the employee. Human rights tribunals, arbitrators and courts will continue to expect evidence of these efforts. However, employers can now rest assured that, where there is no foreseeable improvement to the attendance record notwithstanding the accommodation measures implemented, there is a point of undue hardship.