Labor & Employment Law

Discussing the Duty to Accommodate

By Michael Fitzgibbon

There's a good discussion of the duty to accommodate in the recently released Human Rights Tribunal case of Scarlett v. Hamilton Health Sciences Corporation.  Among other things:

1. The duty to accommodate has both procedural and substantive obligations. (Meiorin)
2. The procedural component requires an individualized investigation of accommodation measures and assessment of the employee?s needs.
3. The substantive aspect of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation.
4. The test of when the duty to accommodate is triggered is whether the employer knew or ought reasonably to have known that the applicant had a disability requiring accommodation.
5. While an employee need not necessarily disclose the diagnosis of the disabling condition, he or she "should endeavour to provide as much information as possible to facilitate the search for accommodation." (Simpson v. Commissionaires (Great Lakes))
6. The duty to accommodate is part of a collaborative process, in which the employer?s actions and responsibilities must be understood in the context of the information before it and positions taken by the employee.

In the end, the Tribunal dismissed the complaint.

Not only does this case provide a good overview of some key components of the duty to accommodate but it also highlights the collaborative aspects of the duty and the fact that the procedural aspects of the duty and how the employer deals with the employee and the employee's response can greatly influence the outcome of the case.  

Full post as published by Thoughts from a Management Lawyer on January 10, 2010 (boomark / email).