Excessive absenteeism is grounds for dismissal. But when the absence isn’t the employee’s fault, discipline is problematic. And if the “non-culpable” absenteeism is due to a disability, the employer must accommodate the employee to the point of undue hardship. The big question: How does the employer know when the point of undue hardship has been reached? A brand new ruling by the Supreme Court of Canada provides important new guidance on this question. Here’s a look at the case and its implications for employers seeking to accommodate employees with disability-related absences.
THE CASE
What Happened: An employee of Hydro-Québec missed 960 days of work over seven-and-a-half years as a result of mental illness and physical ailments such as tendinitis, bursitis, hypothyroidism and hypertension. HQ made repeated attempts to accommodate her but fired her after her latest absence reached five months. An arbitrator dismissed the employee’s grievance, but the Québec Court of Appeal ruled that HQ didn’t meet its duty to accommodate the employee. Undue hardship is reached only when accommodation becomes “impossible,” the court ruled. HQ appealed.
What the Court Decided: The Supreme Court of Canada reversed the Court of Appeal and dismissed the grievance.
How the Court Justified the Decision: The Court said the lower court made two mistakes:
Wrong test for undue hardship. The test for undue hardship isn’t whether it’s impossible to accommodate the employee, the Court explained. The objective of accommodation is to ensure that people who can work are given the opportunity to do so. But if the employer makes efforts to accommodate and the person is still incapable of working, the duty to accommodate comes to an end. When the employee can’t “fulfill the basic obligations” of the employment for the “foreseeable future,” undue hardship has been reached and the employer no longer has to accommodate the employee.
Wrong time frame for assessing duty to accommodate. The Québec court’s second mistake was ruling that the time to measure whether an undue hardship exists is at the time of dismissal. In other words, previous efforts and time spent enduring absenteeism don’t count. But the Supreme Court said you can’t ignore the past and focus only at the employee’s status at dismissal. Finding undue hardship should be “based on an assessment of the entire situation.” HQ had made significant attempts to accommodate the employee and her excessive absenteeism still continued for almost eight years. And her doctors didn’t expect any improvement. Thus, HQ was justified in concluding that further efforts to accommodate would impose undue hardship.
[Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] S.C.J. No. 44, July 17, 2008]
ANALYSIS
The HQ case provides clear guidance on how to apply the test for undue hardship to employees who are chronically absent due to recurring health problems. Although they may return to work for periods of time, the cumulative absences of such employees place a stress on the employer. The HQ Court is saying that there comes a point when such disruption to operations becomes an undue hardship and that employers don’t have to wait indefinitely until all prospects of recovery are gone. The ruling should make it easier for employers to cut ties when after past efforts to accommodate have failed there remains no realistic hope of a return to work.
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