Skip to Content

Duty to Accommodate

An Employer is not Required to Tolerate Excessive Absences

Jurisdiction: - Canada/Federal
Sector: - Transportation

Published in Lawson Lundell LLP Labour and Employment Newsletter (Winter 2005)

In a recent decision1, the Federal Court of Canada - Trial Division (the "Court") ruled that an employer is not required to accommodate an employee with excessive non-culpable or "innocent" absences by simply tolerating the absences.

The decision involved a review of two Canadian Human Rights Tribunal ("CHRT") decisions that were handed down in early 2003 concerning bus drivers employed by the Ottawa-Carleton Regional Transit Commission ("OC-Transpo").

One employee had been employed by OC-Transpo for nearly nine years. She had two types of diagnosed illness: (1) reoccurring migraine headaches that caused her to miss 57 full days and 11 partial days over the course of her employment; and (2) several transitory illnesses - gallbladder problems, broken ankle, bronchitis, etc. - that caused her to miss an additional 365 full days and 24 partial days over the course of her employment.  read more »

"Attendance Management As A Method of Disability Management: The Value And Limitations"

Jurisdiction: - British Columbia - Canada/Federal

Vancouver lawyer Carman J. Overholt, Q.C. and articled student, Cristiano Papile, of Fraser Milner Casgrain, presented a paper on "Attendance Management As A Method of Disability Management: The Value And Limitations" at the Insight Conference, Duty to Accommodate that was held in Vancouver, BC on October 24-25, 2005.

Human Rights Tribunal sets out key factors when determining if person in "employment relationship" for purposes of Code

Jurisdiction: - British Columbia
Sector: - Health Care

In Crane v. B.C. (Ministry of Health Services) and others, 2005 BCHRT 361, the BC Human Rights Tribunal summarized the applicable principles as follows when determining if a person is in employment relationship such that they are protected by the Human Rights Code:  read more »

The Duty to Accommodate in 'Hybrid' Cases

Jurisdiction: - British Columbia
Sector: - Forestry

Published in Management Rights journal (Vol. VIII, No. 1, 2005), pp. 436

In its decision in Fraser Lake Sawmills, the B.C. Labour Relations Board stated that when faced with employee misconduct that is attributable to both an underlying addiction and to culpable factors ("hybrid cases"), the employer must fashion a response that addresses all circumstances of the case. This could include discipline for the culpable aspect of the misconduct while at the same time imposing administrative measures for the non-culpable aspect.

As I explain in the article (see the link below), the Board also stated that the underlying disability must be accommodated.

In the first decisions after Fraser Lake Sawmills dealing with addiction issues, the role of the duty to accommodate was generally overlooked as the labour relations community struggled with how the Board's decision should be applied in practice. However, in two arbitration decisions issued in 2005, the arbitrators discussed how the duty to accommodate should be addressed in hybrid cases.  read more »