Arbitrators and the reviewing courts have recognised that accommodation always requires a balancing act between two underlying issues: the right of an employee with a disability to equal treatment, and the right of an employer to operate a productive workplace.The employer is not required to accommodate where undue hardship would result, nor is it obligated to create an unproductive position.But this much is clear to date: The duty requires more from the employer than simply investigating whether any existing job might be suitable for a disabled employee.

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Accomodating people with learning disabilities video

These principles re-state, in a more concise form, the essence of the recent Supreme Court judgements: "The duty to accommodate derives from the right to equal treatment under the Ontario Human Rights Code.

That duty includes "not only the duties and requirements associated with current jobs but also the duties and requirements associated with a bundle of existing tasks within the ability of a disabled employee." The undue hardship test, which, if applicable, relieves the employer from accommodation requirements, requires the employer to do more than bear trivial or de minimus costs to accommodate the needs of a disabled employee.

This responsibility requires the employer to look at all other possible positions.

Recent cases have said that the employer's accommodation efforts must be "serious", "conscientious", and it must demonstrate its "best efforts".

Whether accommodation would amount to undue hardship entails a spectrum of considerations, including, but not limited to: (i) financial cost, (ii) disruption of a collective agreement, (iii) problems of morale of other employees, (iv) the interchangeability of the workforce and facilities, (v) safety, and (vi) the size of the operations.

The costs of accommodation should be compared with the resulting benefits in deciding whether the hardship caused by accommodation is "undue".

That is, the hospital was required to determine if those lighter duties performed by all nurses in the unit could be re-assembled into a specific light-duty position for the grievor. The employee, a quality control inspector who worked with acids and caustics, suffered from severe epileptic seizures. With the available medical evidence indicating that future severe seizures were unavoidable, the employer terminated the employee for safety reasons.

As the board acknowledged, this form of accommodation could only work in a larger workplace, where there are enough employees to allow such a re-bundling and yet, not unduly burden these other employees with only heavy tasks in their own re-assembled positions. The arbitrator accepted that the continued employment of the employee in his regular position created an unacceptable safety risk to the grievor and to other employees as well.

The particular obligation of employers who operate larger workplaces is illustrated in Re T. Nevertheless, the arbitrator was satisfied that the size of the operations would allow the grievor to be accommodated in a different, re-designed job, with a regular rather than a rotating shift, and special training arrangements for other employees to work around the employee, among other conditions.

The employer's obligation to accommodate includes the provision of training to the employee, provided that the costs of such training would not amount to an undue hardship.

Consistent with the Supreme Court of Canada's direction in O'Malley, Central Alberta Dairy Pool, and Renaud, the initial burden is upon the employer to reasonably accommodate the employee's mental or physical disability.