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Employers have to accommodate people under Canadian human rights laws. The only exception is where doing so would be an undue hardship. This isn’t news – or at least it shouldn’t be. So why blog about it?

The answer is that employees are still being told their particular circumstances are too much trouble for an employer to deal with. Some employers are still making superficial attempts to find a solution.

In fact, the real trouble happens if the employer doesn’t take steps to find an accommodation and make it work.

A recent case in point is that of Stephen Closs. Fulton Forwarders Incorporated hired him as a truck driver to fill in when his co workers were sick or on vacation. Over time this increased to sixty to seventy hour weeks, day and night shifts and little time to sleep between shifts.

He injured his leg in the workplace, and developed lupus, a disease that limited his ability to drive nights without sleep between shifts. His wife also had two miscarriages. He asked for time off to accompany his wife to hospital and to grieve with her.

Although there was some dispute about the facts, the employer’s response was eventually to issue a record of employment and change his status from part time driver to replacement driver, working only when other drivers were away from work.

The Canadian Human Rights Tribunal found that, on both counts, the employer had not seriously considered the Complainant’s needs, or done enough to find a way to accommodate its employee. That’s discrimination under the law.

While the decision recognizes that a small business in the trucking industry has challenges in trying to accommodate employees, it balanced that with what the Supreme Court of Canada described as the need to protect “the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship”.

When employees speak with their employers about whether a possible accommodation is an undue hardship, they sometimes look for a clear way to understand that idea. It’s hard to put it into a few simple words, but the Tribunal told us in the Closs case that, “generally, undue hardship is reached when an employer shows that it could not have done anything else reasonable or practical to avoid the negative impact on the individual”.

Employees have the right to ask for accommodation. Employers that don’t look diligently for a way to accommodate, or worse, refuse a reasonable request, risk a decision that will compensate the employee not just for any lost income, but for pain and suffering, injury to their dignity, and other damages. That can mean thousands, tens of thousands or, in extreme cases, hundreds of thousands of dollars in potential liability.

These rights and obligations have been with us for decades. Employees need to understand that their right to be accommodated – whether on the basis of religion, disability, family status, race or otherwise – is protected under Canadian human rights laws. Employers have to know the extent of their considerable obligation to search for and find, and then to meet the need for accommodation.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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