New Case Law Shows Accommodation does NOT have to be Perfect

Canadian Human Rights Tribunal Ruling

In the case titled Breast v. Whitefish Lake First Nation #128, [2010] C.H.R.D. No. 10, the complainant, Mr. Breast, had worked for Whitefish Lake First Nation #128 (“Whitefish”) for 13 years as the driver of a water truck and a school bus. In January of 2007, Mr. Breast temporarily lost his vision in his right eye as a result of diabetes, and he was given a leave from work. Because water delivery was considered an essential service, Whitefish filled the position when they became aware that Mr. Breast would not be returning to work for some time.

In April of 2007, Mr. Breast asked to return to work and claimed his vision had returned. Before allowing him to do so, Whitefish requested medical information to qualify Mr. Breast’s request. After receiving the required medical documents, Whitefish offered to bring Mr. Breast back to work in the position of a sewer truck driver on the following four conditions:

1. Test his blood sugar level daily and at least every four hours while on the job;

2. Not drive if he had low blood sugar levels and report any hypoglycemic condition to his supervisor immediately;

3. Keep an emergency food kit in the truck at all times; and
 
4. Provide an annual medical and diabetic report required by Alberta Driver.

Mr. Breast declined this offer and refused to accept the position of sewer truck driver, despite the fact that he claimed that he was already taking these necessary steps to comply with the conditions.
 
The Tribunal held that Whitefish had in fact offered Mr. Breast a reasonable accommodation, especially given the fact that Mr. Breast’s previous position and the position of sewer truck driver both had the same wages and benefits. The Tribunal further held that Mr. Breast’s refusal to take the position of sewer truck driver was not reasonable and that he could not simply “hold out” for his previous position which he preferred. Mr. Breast’s conduct failed to facilitate the accommodation process and his complaint was dismissed.

What does this mean for you as employers offering accommodated work to employees returning to your workplace?

1. Ensure you obtain a clear understanding of an employee’s medical based restrictions & prognosis as well as the functional based abilities and restrictions

Employers have an obligation to obtain all of this relevant information to ascertain the employee’s restrictions and limitations which in turn determines how you can accommodate the employee.
However, what has been lost over the last few years on the part of employers is the understanding that the employee also has a duty to cooperate with the employer in the accommodation process by complying with reasonable requests for medical & functional based information particularly as it relates to a return to work plan.

2. As the employer try to find the best accommodation possible while not incurring undue hardship
The duty to accommodate is an ongoing process on the part of the employer and the employee. Consideration should be given to both monetary benefit to employees as well as the non-monetary benefits at the commencement of the accommodation.

3. Employees are not entitled to “perfect” accommodation

Employees are not entitled to their preferred accommodation or job, just because it is their preference. An employer is obligated to provide reasonable accommodation and, if they do so, the obligation has been fulfilled as per the provincial and federal Human Rights Codes.
 
We find in our practice that employers have become almost fearful of the legal repercussions if they do not offer the “perfect” or “ideal” accommodation for employees particularly if an alternate job is to be found.  Case law finds this is NOT the case and we advise our clients to use these guidelines to direct each of the return to work steps.
 
Need guidance? Our team at OPC Inc can assist.  J.sleeth@optimalperformance.ca or 416 860-0002
 
JE Sleeth Managing Partner

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