It is now widely recognized that employers have a duty to accommodate employees in the workplace. Over the years, the Human Rights Tribunal of Ontario (the “Tribunal”) has provided guidance with respect to the many different forms accommodation may take. For employers, it often appears that the Tribunal is imposing more and more obligations on how employees are to be accommodated, and it can often seem like the standards are too high. However, a recent decision of the Tribunal has confirmed that the duty to accommodate does not require employers to change the essential duties of an employee’s job.

In Pourasadi v Bentley Leathers Inc, 2015 HRTO 138, the applicant alleged that her employer had discriminated against her on the basis of disability contrary to the Ontario Human Rights Code. The applicant was employed as a store manager at Bentley. Approximately 65 to 70% of the applicant’s work involved sales and customer service, 25 to 30% of her work involved merchandising, display and housekeeping, and the remaining 5 to 10% of her duties involved store operations, training and development. As a store manager, the applicant often worked alone. In August 2008, the applicant injured her right wrist at work. When the applicant was ready to return to work in November 2008, Bentley provided her with modified duties. Following an unsuccessful wrist surgery in November 2009, the applicant returned to work in April 2010; however, the applicant continued to have a number of physical restrictions on the use of her wrist. Due to her limitations, the applicant was unable to perform the duties of a store manager while working alone in the store.

For a period of time, Bentley agreed to provide up to 25 additional staff hours to allow a second employee to work with the applicant to perform necessary work that was outside of the applicant’s restrictions. However, eventually the Company was no longer in a position to continue this form of accommodation. The Workplace Safety and Insurance Board also concluded that the store manager position was not suitable for the applicant because it involved too many duties outside of the applicant’s abilities.

The applicant suggested that the Company should accommodate her by scheduling her to work alone and permitting her to ask customers whose needs required the applicant to go outside of her physical restrictions to return to the store at a time when other members of staff were available to assist. The Tribunal found that this form of accommodation would cause undue hardship to the Company. The Tribunal provided clarification as to what the duty to accommodate does and does not require. Specifically, the Tribunal noted that while the duty to accommodate may require arranging an employee’s workplace to allow the employee to perform the essential duties of his or her work, it does not require permanently changing the essential duties of a position or assigning the essential duties of a position to other employees. Further, the duty to accommodate does not require an employer to exempt an individual from performing the essential duties of the position. The Tribunal found that assisting customers was an essential component of the applicant’s job and the accommodations sought by the applicant would not allow her to satisfy this requirement. As a result, the accommodations sought by the applicant were inappropriate and she was unsuitable for the position because of her restrictions.

While it is often difficult to determine exactly how much an employer is expected to do to accommodate an employee in the workplace, the Tribunal’s decision in Pourasadi reaffirms that employers are not required to change the essential duties of an employee’s job to enable the individual to continue working. While employers are, as always, required to make good faith efforts to accommodate employees, there truly are sensible limits on those obligations.

James G Knight and Megan Beal are lawyers with Filion Wakely Thorup Angeletti LLP filion.on.ca

 

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