[vc_row][vc_column][vc_column_text]July 5, 2007

How much hardship is “undue” hardship? The Supreme Court said that Employers continue to have an obligation to accommodate a disabled employee to the point of undue hardship. For employers trying to accommodate disabled employees, trying to define “undue” hardship is like trying to solve a rubik’s cube – the landscape just keeps changing. The Supreme Court of Canada has recently released a decision which will be of some assistance to unionized employers trying to solve this puzzle.

In Mcgill University Health Centre v. Syndicat des employes de l’Hopital general de Montreal , the Court was asked to decide whether or not a clause, which terminated a disabled employee who had been away from work for a period of three years, was inconsistent with an employer’s duty to accommodate. The trade union filed a grievance claiming that the employer had not taken reasonable measures to accommodate the disabled employee. The union argued that accommodation must be individualized, and could not be discharged by mechanically applying a general termination clause.

The Supreme Court said that the test of what constitutes undue hardship is a factual one to be determined on a case-by-case basis. Employers and unions were in a better position than judges to determine what constitutes undue hardship in a particular situation. Since parties to a collective agreement have a right to negotiate clauses to ensure that sick employees return to work within a reasonable period of time, the establishment of a maximum period of time for absence is thus a form of negotiated accommodation. Therefore, where the parties have negotiated an automatic termination clause such clause will be viewed as illustrative of undue hardship. The Court ultimately held that the termination clause had been applied after consideration of all the relevant facts and, as a result, the employee had been accommodated to the point of undue hardship.

In defining “undue” hardship Courts will consider the termination clause along with the other traditional factors including:

• the cost of accommodation;
• employee morale and mobility;
• interference with other employees’ rights; and
• disruption of the collective agreement.

Negotiating an automatic termination clause into the collective agreement is one way to identify and define the Employer’s duty to accommodate to the point of undue hardship. During a disabled employee’s absence from work, employers should be in constant contact regarding the status of their health and prognosis for recovery and return to work. Where a disabled employee is incapable of returning to work, an automatic termination clause will be recognized by arbitrators and courts as a reasonable limitation on the expectations for a disabled employee’s return to work, and sufficient to meet the test of “undue” hardship.[/vc_column_text][/vc_column][/vc_row]