The Next Wave of Workplace Reasonable Accommodation Cases…?

It is settled law across Canada that employers are required to accommodate disabled employees to the point of undue hardship. While the legal meaning and extent of the terms “handicapped” and “undue hardship” are constantly being tested before tribunals at all levels, the concept is uncontroversial – an employer must adapt the workplace to accommodate a disabled employee to a certain point. Accordingly, employers may need to adapt workplaces by providing ramps or elevator access, special bathrooms, handrails, etc. Depending on a number of factors, it can be the employer’s responsibility to bear any costs associated with those adaptations. It’s the law and it’s the right thing to do.

However, is an employer ever required to pay the costs to adapt an employee to the workplace? For example, what if an employee requires a special wheelchair, crutches or eyeglasses to perform their job? Are employers required to pay? Until recently, the answer was generally “no” – employees are responsible for those more personal items. See, for example, Toronto District School Board v. E.T.F.O., (2007), 162 L.A.C. (4th) 385.

However, in a 2011 decision, Thunder Bay Catholic District School Board v. O.E.C.T.A. (2011), 209 L.A.C. (4th) 223, Arbitrator Luborsky concluded the opposite – that in that case, the employer had to contribute to cost of a special hearing aid. That decision has generated some controversy.

What are your thoughts? Taking that example to its logical conclusion could require employers to fund the cost (or a part of the cost) of glasses for every nearsighted employee. Is that fair or reasonable?

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Comments

  1. I have not read the awards, but it seems to me that whether an the accommodation is reasonable would depend on a careful balancing between:

    the nature of the disability;
    the relationship between the disability and the job functions (i.e.whether and how it affects the employee’s ability to perform his job function);
    the cost of the accomodation;
    the resources the employer has;

    Considering the above:

    asking a SMB to purchase glasses to all its nearsighted employees can be unreasonable while asking blue chip to do so may not. That being said, requiring a blue chip to purchase glasses for all of its nearshighted assistants or deskworkers may be unreasoanble while requiring it to purchase glasses for all of its drivers may not.