When workers get injured or ill, you hope that they’ll be able to return to work quickly and perform the same duties they had before. However, some injuries or illnesses make it impossible for workers to do the exact same job they did before their illness or injury. For example, a warehouse worker recovering from a back injury may be able to return to work but not lift the heavy items somebody in his position is required to handle. Human rights laws require companies to make accommodations for workers with physical and mental disabilities—but only if those accommodations are reasonable. Companies don’t have to make accommodations that impose “undue hardship.” But when does changing workers’ duties so they can return from injury or illness cross the line from reasonable accommodation into undue hardship? Here are two cases illustrating the factors courts consider in addressing this question.
ACCOMMODATION ≠ UNDUE HARDSHIP
FACTS
A flour mill worker oversaw the movement of flour from one destination in the mill to another using a pneumatic system controlled by a computer. Most of the job involved sitting in a control room, monitoring a computer terminal. But on occasion, he had to clear a clog in the flow of flour by banging on the bin with a sledgehammer. The worker injured his shoulder while clearing a clog. He needed two surgeries and was out of work for approximately two years. About six months after the second operation, his doctor cleared him to return to work with certain restrictions, including no repetitive or overhead lifting or lifting of more than five pounds. The mill refused to rehire the worker, claiming that accommodating his restrictions would be an undue hardship.
DECISION
The Ontario arbitrator ordered the mill to rehire the worker.
EXPLANATION
The arbitrator noted that the worker could still perform a useful job for the mill. The tasks he could no longer do were a very small portion of his job and could be done by other workers. There was no evidence that having other workers occasionally help the worker when needed would cost the mill anything financially. And although bringing workers from other areas to help the worker might be inefficient, in the bigger picture, these inefficiencies wouldn’t be a major burden on the mill. Thus, the arbitrator concluded that the mill didn’t prove that accommodating the worker would be an undue hardship.
ADM Milling Co. v. United Food and Commercial Workers International Union, Local 175 (Bennett Grievance), [2008] CanLII 63558 (ON L.A.), Dec. 4, 2008
ACCOMMODATION = UNDUE HARDSHIP
FACTS
An auxiliary firefighter worked for the Forest Service for several fire seasons. During one season, the conditions on the fire line were less than ideal. The firefighter began to feel ill and was taken by another crew member to see a doctor. He was diagnosed with Crohn’s disease, a bowel disorder. His doctors told the Service that stress can exacerbate the condition and flare ups would compromise his ability to do the job. In addition, many fires are in remote locations, where getting the firefighter medical help if needed would be difficult. The Service offered him a job as a dispatcher but he didn’t have the necessary skills. The firefighter asked for a position as a Forest Protection Assistant (FPA). But the Service said that position wasn’t a good fit because FPAs still have to go out into fire areas. Based on the firefighter’s health, the Service didn’t recall him for the next fire season. So the union filed a grievance.
DECISION
A BC labour arbitrator dismissed the grievance, ruling that the Service had accommodated the firefighter to the point of undue hardship.
EXPLANATION
The union argued that the Service should have accommodated the firefighter by changing other workers’ duties so he wouldn’t have to fight fires. For example, the Service could have a few FPAs do a little more remote field work so the firefighter could do office work and not be deployed to the field. The arbitrator said it would be undue hardship for the Service to accommodate the firefighter in this manner. Only five percent of an FPA’s job was administrative. Due to the Service’s organizational needs, all workers must be available to be sent to the fire line into conditions that are often stressful and unpredictable. It’s not reasonable for the Service to reduce its safety standards by providing duties to the firefighter that would allow him to “sidestep attendance at the fire line,” said the arbitrator. Not to have a full complement of workers “ready, willing and able to fight those fires is a safety consideration that must be paramount for the [Service],” the arbitrator concluded.
BC Public Service Agency v. BC Government and Service Employees’ Union (Riess Grievance), [2006] B.C.C.A.A.A. No. 64, April 4, 2006
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