Duty to Accommodate does not include a “duty to allow an employee not to work”, Court holds

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In Ontario Public Service Employees Union v. Ontario (Children and Youth Services), the Divisional Court upheld the decision of the Ontario Grievance Board. The Board held that the employer had not breached its duty to accommodate the employee’s disability when it terminated his employment on the ground of innocent absenteeism.

Mr. Bartolotta, who worked as a youth services officer, suffered from a chronic degenerative back condition that could flare up without warning. When his condition flared up, he was unable to work. When the condition was passive, he was fully capable of performing his duties. Mr. Bartolotta’s average rate of absenteeism was 35 %, amounting to more than 70 absences per year.

The employer made various accommodation proposals to Mr. Bartolotta who, in turn, rejected the proposals because there were no workplace barriers to his ability to work. Rather, the issue was the largely unpredictable nature of his condition which required him not to work during flare ups.  The employer ultimately terminated Mr. Bartolotta’s employment on the ground of innocent absenteeism.

In holding that the employer had met its duty to accommodate, the Board held that:

  • the employer’s duty to accommodate does not include a duty to allow the employee not to work;
  • the goal of accommodation is to ensure that an employee who is able to work can do so; and
  • the purpose of the duty to accommodate is not to completely alter the essence of the employment contract, that is, the employee’s duty to perform work in exchange for remuneration.

The Divisional Court dismissed OPSEU’s Application for judicial review on the basis that the Board’s decision was reasonable and further added that the duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future. The Court also awarded the employer its costs.

This decision sheds some light on the breadth of an employer’s duty to accommodate where an employee cannot perform his job due to innocent absenteeism. Although this case comes from a unionized environment, the principles enumerated therein stem from a judgment of the Supreme Court of Canada and may be applicable to non-unionized employers as well. When confronted with a case of innocent absenteeism due to disability, employers have a duty to accommodate; however, where there is medical confirmation that the employee will not be able to work on a regular and reliable basis in the foreseeable future, the duty will likely not extend to require the employer to tolerate excessive absenteeism.