In employment law circles, there is an ongoing debate about how far an employer must go in accommodating a disabled employee to reach the point of “undue hardship”. The Supreme Court has held that an employer is not created to create a position or hire an additional employee to cover for the duties of an employee – the employee must still be able to carry out the essential functions of their job. The debate has since moved to determining what exactly makes an “essential function”.
In a recent decision rendered by James McNamee, Hamilton Health Sciences v Ontario Nurses’ Association, 2013 CanLII 36061 (ON LA), the employee, a nurse, grieved her hospital’s refusal to provide her a temporary accommodations as, in their view, she would not be able to perform one essential function of the available role – to provide occassional direct patient care. The primary role of the position was to be a “team leader” for other nurses. The evidence indicated that the:
Team Leader on day shift needed to be able to take a full patient care assignment at least 5% of the time, and that unpredictable events of one sort or the other occurred on an almost daily basis.
Notwithstanding that that this function was only 5% the overall role, Arbitrator McNamee held that the Hospital would have been required to pay for an additional employee during that shift to cover for that 5% and that it was not required to do so, concluding that the “authorities were unanimous… that an employer is not required to accommodate to the extent that it provides another employee specifically for the purpose of assisting a disabled employee to perform the essential duties of his/her job”.
While the decision may have harsh effects on the employee, it’s consistent with the law and provides a clear example of where line between reasonable accommodation and undue harship falls.