Duty to Accommodate

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