Duty to Accommodate

Information provided herein is specific to St. Boniface Nurses Worksite 5. Please contact the Worksite 5 office with any questions or concerns, or when an issue first arises.

Duty to Accommodate

Accommodation meetings are held at the hospital in Occupational Health. Attendees at accommodation meetings include the nurse, SBH Employee Relations, the disability manager from SBH Occupational Health and the union. Most accommodations start out as temporary although some evolve into permanent accommodations.

What is accommodation?

Accommodation means designing work environments that are barrier-free, so that everyone is given the opportunity to perform to their potential. This may mean making adjustments or alternative arrangements, or changing a rule or practice in order to remove a discriminatory effect.

Accommodation: Who says this is an issue?

• Supreme Court of Canada
• Canadian Human Rights Commission
• Manitoba Human Rights Commission
• Arbitration Boards from across Canada

Circumstances for accommodation?

The employee is obligated to establish their need for accommodation and therefore must make their situation known to the employer.

While the need for accommodation may appear obvious, it is inappropriate for either the employer or the union to act independently of the employee.

Who has the duty?

Employers and unions are required to make every reasonable effort, short of undue hardship, to accommodate an employee who comes under a protected ground within human rights legislation.

Human Rights

Human rights override labour law.

The Human Rights Code of Manitoba sets out prohibited discrimination based on the following characteristics: ancestry; nationality; ethnic background; religion or creed; age, sex, gender, sexual orientation; marital or family status; source of income; political belief; physical or mental disability or related characteristics or circumstances.

Bone Fide Occupation Requirement (BFOR) and Undue Hardship are two legal concepts which allow for exemptions under the law.

The Supreme Court of Canada suggests a three step process when looking at a rule or standard as being a BFOR.

1. Establish a rational connection to the actual work.
2. Establish good faith.
3. Establish reasonable necessity.
   

Undue hardship is the legal standard used to measure whether or not an accommodation is reasonable or unreasonable in a given set of circumstances. Examples of undue hardship include:

• Financial cost to the employer
• Size of the employer’s operation
• Impact on the collective agreement
• Problems with employee morale
• Safety risk to the employee or others

Employer’s & Union’s responsibilities

Employer’s responsibilities include:

• Performing a thorough investigation of all possibilities for accommodation in any job or set tasks in the workplace in order to find one that is the least disruptive to the workplace and the most effective for all concerned.
• Looking at re-bundling tasks.
• Some education or training to meet the requirements of the accommodated positions.

Employer’s responsibilities do NOT include:

• Displacing other employees from an occupied position to accommodate a disabled worker.
• Creating a new position which has no meaningful value, or adding to staff complement.

Union’s responsibilities:

• Educating membership
• Supporting the affected employee
• Waiving a position posting (as a last resort only)

An accommodation may look like:

• Modification of a work schedule
• Observing physical restrictions (i.e. patient lifts/transfers)
• Adjusting shifts to allow an employee to attend a treatment program
• Acknowledging absenteeism as it relates to a disability

Addictions & Disabilities

Addiction and disability are the two most prevalent reasons that an accommodation is requested and/or needed. A finding that an impairing condition amounts to a disability or handicap is the legal precondition to assessing the duty to accommodate. The impairment may be temporary, long lasting, or permanent.

Addictions include gambling, drugs and alcohol. The purpose of accommodation in the case of drug and/or alcohol addiction is to rehabilitate the employee back into the workplace.

Disabilities include stress/mental health, medical condition(s), and physical injuries. Both mental and physical disabilities are subject to the need for an accommodation.

Medical Documentation

Article 23 of our collective agreement gives the employer the right to request a medical documentation as proof of a nurse’s fitness to return to work. The actual diagnosis is not required, only sufficient information as to restrictions as they relate to the nurse’s specific job functions.

Family Status

Consideration must be made when an employee’s child-care arrangements are of such a nature that a duty to accommodate status is triggered. Breast feeding or the care of a disabled child are two circumstances which may give rise to a claim. Accommodation does not include regular childcare needs.

Religious Accommodation

Articles of faith which are clear and unambiguous and state the potential consequences for the member if they contribute to, or are part of a union, or have strict requirements of its members as to when the employee must not work, or must fulfill a religious obligation. There are a variety of religions which have restrictions, and each will be reviewed by the Manitoba Labour Board on an individual basis

Duty to Accommodate Discharge

Not all employees’ needs can be met.  There must be some meaningful value to the employer of the work an employee is capable of performing.  Sometimes an employee is not capable of performing meaningful work and must look at other options.

The employer does not have to find a position or accommodate to the full and complete satisfaction of the employee – an employee cannot and should not expect to find a perfect solution.  If a proposal that would be reasonable in all circumstances is turned down by a nurse, the employer’s duty to accommodate is discharged.