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Alberta arbitrator says the procedural duty to accommodate is not a stand-alone duty

Accommodation E-lert, posted on July 9, 2026 within the category "The general legal duty".

The grievor had a physical disability for several years and three grievances alleging failure in the duty to accommodate were dismissed as the arbitrator held the employer had met its duty to accommodate short of undue hardship.  Further, despite errors in process, the arbitrator found there was no separate procedural duty in Alberta, but procedure was relevant in meeting substantive accommodation.  Finally, it was not required under the collective agreement for the union to be included in the initial phases of the accommodation process.
 
Legal Citation
 
Alberta Union of Provincial Employees, Local 048, Chapter 002 v. Bethany Care Society, 2026 CanLII 40173 (AB GAA), April 22, 2026 (Arbitrator Hughes)
 
Facts
 
Before being hired as Health Care Aid, the grievor had disclosed that she had a pre-existing medical condition. 
 
Five years later, the grievor went off work saying she was suffering an exacerbation of that medical condition.  
 
She provided a functional abilities form completed by her physician outlining her abilities and restrictions.  
 
In the initial grievance, the union claimed the employer, in requiring her to take sick leave rather than returning to work, failed to accommodate the recommended medical restrictions.  After some three months, the grievor returned to work without restrictions.
 
Following the return to work, the employer requested another functional abilities form, and this set out more significant restrictions on the grievor's ability to assist with daily resident hygiene activities.  The employer assessed that the grievor could now only work 0.4 of full-time employment and the second grievance alleged that the employer failed to accommodate the grievor by offering work based on that limited level. 
 
With respect to the third grievance, after various subsequent struggles at work, the employer requested another functional abilities form which then stated that the grievor could not work with  combative residents,  defined as anyone who could  pull or grab at (the Grievor's ) arms.   
 
The union alleged that the employer failed its duty to accommodate by not providing the grievor with some form of modified work on receipt of that restriction. 
 
Legal Analysis
 
The arbitrator assessed whether prima facie discrimination as set out by the Supreme Court in Moore¹ was established:
 
  1. Did the grievor have a protected ground under the Code?  The arbitrator noted that fact that physical disability was not contested; 
  2. Did the grievor suffer an adverse impact?  The arbitrator found that the grievor being unable to perform the full scope of her role and being restricted from doing so or being placed off work entirely to be an adverse impact; and  
  3. Is the protected characteristic a factor in the adverse impact?  The arbitrator found that it was clear that the only "ostensible reason"  the grievor could not perform their duties is the presence of her disability. 
The arbitrator then turned to whether, based on the Meiorin² test, the employer could establish a bona fide occupational requirement (BFOR) for its restrictions on the grievor:
 
  1. The employer must adopt the standard for a purpose rationally connected to the performance of the job.   This was not disputed.
  2. The employer must adopt the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose.  Again, this was not disputed. 
  3. The standard must be reasonably necessary to the accomplishment of that legitimate work- related purpose.  To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
The arbitrator held that the issue revolves around the third step of the Meiorin assessment.   
 
Turning to the initial grievance, assisting residents with hygiene is a core function of the grievor's job and the arbitrator found that the employer was not required to accommodate the grievor as it would alter the essence of her employment as a care aid.  
 
In finding that the employer also met its duty to accommodate in the second grievance, the arbitrator noted that the employer, on top of offering the reduced full-time option, reviewed all open and unfilled positions with the employee and continued to adjust in light of evolving medical information.  Furthermore, the employer identified five positions that would fit the grievor's restrictions. 
 
Finally, with respect to the last grievance, the arbitrator accepted the employer s argument that being able to perform resident-contact hygiene safely and handling the predictable risk of being grabbed are bona fide occupational requirements to ensure resident safety.  
 
The arbitrator then spent some time addressing procedural accommodation allegations. 
 
First, relying on an Albera Human Rights Commission decision, Summit Solar³, the arbitrator held that, in Alberta, the procedural duty in the accommodation process is relevant in considering the substantive duty to accommodate, but only the breach of the substantive duty would establish a failure to meet the duty to accommodate.  The procedural requirement is not a stand-alone duty and failing to meet procedural requirements would not in itself meet a failure in the duty to accommodate. 
 
Finally, citing the BC Telus4 case, the arbitrator held bargaining agents do not have a presumed right to be involved in accommodation-related discussions between the employee member and the employer.  Therefore,  the employer's failure to include the union in the initial stages of the accommodation process was not a breach of the employer's duty to accommodate. 
 
Takeaways for Employers
 
The duty to accommodate does not require an employer to alter the essence of the employment contract or accommodate where it would create undue hardship.  Here, in effect, is an example of an employer doing all that it should to meet its duty to accommodate.  Note that in Ontario, however, the Human Rights Tribunal has considered the breach of the procedural duty to accommodate as a distinct enforceable right.
 
Takeaways for Unions
 
The arbitrator's finding that unions are not entitled to be a part of the accommodation process should be read with the Supreme Court of Canada decision in Renaud which provides that a union would be liable for discrimination if it impeded the reasonable efforts of an employer to accommodate.  That suggests being part of the process.  It, therefore, remains a three-party process –  employer, employee and union –  although the stage at which union involvement occurs may be subject to the provisions of a collective agreement.
¹ Moore v British Columbia (Education), 2012 SCC 61.
² British Columbia (Public Service Employee Relations Commission) v BCGEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 (SCC)( Meiorin ).
³ Summit Solar Drywall Contractors Inc v Alberta (Human Rights Commission), 2017 ABQB 215 ( Summit Solar )
4 Telus Communications Inc v TWU, 2017 BCCA 100