Accomodating people with learning disabilities

11 Oct

Arbitrators and the reviewing courts have recognised that accommodation always requires a balancing act between two underlying issues: the right of an employee with a disability to equal treatment, and the right of an employer to operate a productive workplace.

The employer is not required to accommodate where undue hardship would result, nor is it obligated to create an unproductive position.

In Calgary District Hospital Group, a nurse with a back-related injury was preparing to return to work.

Her back injury had left her unable to perform several key aspects of her regular position, including the lifting and transferring of patients.

Whether accommodation would amount to undue hardship entails a spectrum of considerations, including, but not limited to: (i) financial cost, (ii) disruption of a collective agreement, (iii) problems of morale of other employees, (iv) the interchangeability of the workforce and facilities, (v) safety, and (vi) the size of the operations.

The employer wanted to place her in a part-time clerical position, but the grievor aspired to become an educator with the hospital, which would have required training.The results of this comparison will vary from case to case.The employer bears the burden of proving that the accommodative measures would amount to undue hardship. Boundaries on the Employer's Duty to Accommodate The duty to accommodate in Canadian labour law is not limitless.Editor's Note: Editor's Note: Michael Lynk is a professor of law at the University of Western Ontario.The article set out below is a summary of information presented by Professor Lynk at his presentation given to the Public Service Alliance of Canada in September, 1999.