Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on March 26, 2020 within the category "The definition of undue hardship". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.

A Saskatchewan arbitrator held that an employer failed to accommodate an employee to the point of undue hardship.  After she went on medical leave in December 2015, she filed several complaints regarding her workplace, co-workers and managers.  During her return to work, relations between the employer and grievor remained tense.  The grievor went on medical leave again in January 2016, and subsequently filed another complaint against her employer.  The employer subsequently terminated the grievor’s employment.
Legal Citation 
Health Sciences Association of Saskatchewan v Saskatchewan Health Authority (Successor of Kelsey Trail Health Region), 2019 CanLII 70609 (SK LA) (Saskatchewan Arbitration, 25 July 2019) (Arbitration board: William F.J Hood (chair), Andrew Huculak & Sheldon Kokorudz).
The grievor began working as a staff pharmacist at Melfort Union Hospital on July 17, 1989.      
On December 6, 2013, the grievor left work on medical leave due to a mental disability.  She was approved for medical leave under the employer’s disability benefits plan.
While on medical leave, the grievor submitted several complaints regarding her workplace, co-workers and managers. Her complaints alleged that: 
  1. Some of the new Pharmacy procedures proposed by Mr. Walter, the Director of Pharmacy, compromised patient safety and disregarded The Pharmacy Act, 1996
  2. Professional incompetence and professional negligence allegations against Mr. Walter; and 
  3. Mr. Walter and the employer provided a work environment that allowed bullying and harassment to flourish. The employer investigated the complaints, and determined that the allegations of harassment were not substantiated, but the actions of the director had not met an acceptable standard of management practice. 
On May 27, 2015, the grievor’s doctor, Dr. Cooper, notified the employer that the grievor was ready to begin a graduated return to work (RTW).  The RTW Program was delayed and did not commence until September 8, 2015.
The employer proposed a rehabilitation program with the objective of gradually returning the grievor to her pre-disability leave hours and duties in her former position.  At the end of each graduated shift during her RTW, the grievor and employer completed feedback form, and they met to discuss the grievor’s progress.  On October 13, Mr. Walter noted some concerns, stating there was a lack of trust between the grievor and the employer.  During an end-of-shift meeting on October 30, the grievor expressed a desire to increase her responsibilities.  She thought she was being micromanaged.  The grievor’s RTW was put on hold until further instruction was provided by her physician, Dr. Cooper.
Dr. Cooper made a number of suggestions to reduce the grievor’s anxiety in the workplace, such as providing expectations in writing and addressing interpersonal conflicts in a respectful manner.  The grievor resumed her graduated RTW Program on December 7, 2015.  The grievor’s feedback form on the December 14 shift stated, “Not an ideal environment for me to work in due to underlying issues and tension.” 
The grievor continued to challenge the employer’s workplace procedures.  The grievor’s feedback from the December 28, 2015 shift noted the “tasks were fine” but “the environment was not healthy” for her.  Mr. Walter noted there were “no concerns” with the grievor during the shift, but he “had reservations regarding working relationships with all groups.”
During an end-of-shift meeting on December 30, the employer provided the grievor with a list of expectations and informed her that she could be subject to discipline if she did not obey the employer’s workplace procedures and instructions. 
On January 29, 2016, Dr. Cooper provided a note to the employer, stating that the grievor could not work due to her medical condition until the end of March.  Dr. Cooper subsequently extended the grievor’s sick leave until December 31, 2016.
On May 11, 2016, while on sick leave, the grievor filed a new harassment complaint against the employer. 
An investigation was conducted, which concluded that harassment had not been proven.  On December 20, 2016, Dr. Cooper cleared the grievor to begin an RTW Program in approximately four weeks. 
Mr. Walter testified that he had grown doubtful as to whether the grievor’s return to work would be successful, because of the poor morale in the workplace and indications from the staff that some of them were threatening to quit if the grievor came back to work.  
He said there was a loss of trust with the grievor. 
The employer ultimately terminated the grievor’s employment in mid-January 2017.
The grievor challenged her termination, arguing that the employer did not fulfil its legal obligation to accommodate her. 
The issue in this case was whether the employer fulfilled its duty to accommodate the grievor’s disability to the point of undue hardship.
The employer argued it satisfied its duty to accommodate to the point of undue hardship because there was a lack of evidence from the grievor’s physician for a favourable prognosis for recovery.  The arbitration board were not persuaded by the argument, holding that:
[200] … Never did the Grievor’s physician say the Grievor would not make a favourable recovery. Never did the Employer ask that question of the Grievor’s physician. The evidence is that there was an expectation of a favourable recovery and the parties were working toward that objective. [Emphasis added]
The board noted that there was evidence of morale problems from employees who were unhappy working with the grievor.  However: 
201… Employee morale with the Grievor’s attendance in the workplace is a factor to be considered, but “must be applied with caution” (See Central Alberta Dairy Pool, supra).  [Emphasis added.]
202. In circumstances such as this the Employer has an obligation in the accommodation process to be proactive by taking reasonable measures to prevent and diffuse morale problems in the workplace. The Employer has not demonstrated that it took measures to prevent or counter the morale problems. It appears the Employer was content to just let the concerns of the coworkers’ play out with no direction from the Employer to alleviate the problem. [Emphasis added.]
As well, the board noted that the grievor’s wages were paid by the employer’s disability plan, and thus there was no cost to the employer.  With respect the duty to accommodate, it stated that:
215. Hardship is expected in the accommodation process. Undue hardship to the employer is not. The test of what is undue hardship is a high one. The employer must establish that it is impossible to accommodate the disabled employee without undue hardship. [Emphasis added.]
The arbitration board ultimately held that the employer failed to prove that it suffered undue hardship in the accommodation of the grievor’s mental disability. As it stated:
231. The Employer did not seriously or reasonably consider the prospect of the Grievor’s ability to return to work. Its mind was made up. “It was not going to be successful” and “we were done”. Objective reasoning was absent from this conclusion. [Emphasis added]
Accordingly, it reinstated the grievor with back pay.
Implications for Employers
For employers, this case indicates that the duty to accommodate can sometimes require employers take steps in repairing relations between management and employees.  In this case, there was evidence of morale problems from employees who were unhappy working with the grievor.  However, these morale problems were insufficient to demonstrate that the employer could not accommodate the grievor short of undue hardship.  As the arbitrator board noted: 
206. Mediation was an option the Employer could have pursued to attempt to bring harmony to the work relationships. The Employer did not take sufficient steps to mend team relationships among the employees with the morale problems.
What employers must avoid in the accommodation process is blinkered reasoning.  Making up its mind prematurely, without all of the evidence, is a surefire way to undermine its accommodation duties.
Implications for Unions
For unions, this case demonstrates the high evidentiary burden that employer must satisfy in order to demonstrate that it has accommodated an employee to the point of undue hardship.  The employer must establish that it is impossible to accommodate the disabled employee without undue hardship.  When an employer claims that it cannot accommodate the employee without suffering undue hardship, unions should evaluate the options that the employer could have taken to reduce the hardship it allegedly experienced.