Employees’ Duties to Accept a Reasonable Accommodation
Much has been written about employers’ duties to accommodate an employee who is disabled or requires accommodation for religious reasons or other grounds enumerated in the Human Rights Code. However, very little attention has been paid to employees’ corresponding duty to accept a proposal for continued employment made by an employer.
The general rule is that an employee has a duty to do everything in his or her power to re-establish the employment relationship, including accepting a reasonable offer of accommodation. An employee is not required to accept an accommodation proposal that would cause him or her physical or psychological harm. However, an employee must have a subjectively reasonable belief that the accommodated position is likely to cause harm. If an employee turns down a reasonable offer of accommodation without cause, an arbitrator is likely to find that the employer’s duty to accommodate has been satisfied.
The case law establishes that an employee has a duty to facilitate implementation of reasonable accommodation proposal. The employee is not entitled to expect perfection but must accept a proposal that is reasonable. If an employee rejects a reasonable offer of accommodation, the employer’s duty will be fulfilled. Depending on the surrounding circumstances, the employer may be entitled to terminate an employee who refuses to assume a reasonable accommodation. In determining whether an offer of accommodation is reasonable, arbitrators will often balance the desire of an employee to maintain a particular position with the employer’s functional needs. Where an employee is unable to perform the essential functions of his or her pre-existing position, the employer may be entitled to place the employee in a lower rated position with a lower rated pay. Similarly, an employer may be considered to have fulfilled its requirement to accommodate an employee by offering part-time employment where the medical evidence indicates that the employee is unlikely to be able to work on a full-time basis
In 2000 the Ontario Court of Appeal determined that an employee is not necessarily entitled to the accommodation that he or she would prefer. In Ontario (Ministry of Community and Social Services) v. Grievance Settlement Board it was held that where an employer makes an offer that would accommodate the employee without causing significant adversity to the employee, it may be considered a reasonable accommodation, even in the absence of evidence to show that the option preferred by the employee would amount to undue hardship on the employer. In this case the employee had asked for eleven (11) days of paid leave in order to observe his religious holidays. The Government had a policy of paying for two (2) days of leave for religious observances and accommodating other requests by changing the schedule of the employee. For example, the employee was entitled to work a compressed work week in order to have an additional day off. The employer was agreeable to allowing the employee to “bank” days earned by working a compressed work week in order to take a number of consecutive days off when required for religious observances. The arbitrator had taken an approach to the problem by requiring the employer to make “complete” accommodation as opposed to “reasonable” accommodation. The arbitrator determined that the employer must make the most “complete” accommodation that was short of undue hardship. It was not enough to suggest that the policy of granting days off for religious observance was reasonable, the employer would have to show that granting the eleven (11) days off with pay would amount to undue hardship. The Ontario Court of Appeal determined that this approach was patently unreasonable. An employer was not required to show that any other accommodation would amount to undue hardship prior to offering a reasonable accommodation, provided the accommodation offered did not have any significant hardship or inconvenience to the employee.
An employee may refuse a suggested accommodated position on the basis that it would be detrimental to his or her physical or mental health. However, case law has determined that the employee’s reliance on medical advice must be objectively reasonable in the circumstances. An employee cannot insist on a leave of absence based on medical advice where the employee has not informed the physician of the fact that the employer has offered modified work to suit the medical restrictions. The employee must take into account that the employer has offered to modify the working conditions and may only refuse to report to the accommodated position if the working conditions would be detrimental to his or her health despite the modifications.
In summary, an employee has a duty to accept a position that amounts to a reasonable accommodation. When determining what is reasonable, an arbitrator will balance the employee’s desire with the employer’s functional needs. It is clear that an employee cannot expect a perfect solution. Although an employee might expect to be returned to his or her original position, it is clear that an employer is not required to maintain an employee is a position where he or she is not able to perform the essential duties of the position, even with accommodation.
Where an accommodation solution accommodates the employee’s disability (or other enumerated ground) without substantial negative consequences to the employee, the employee should accept the solution unless there are reasonably objective medical or psychological reasons for declining. If there is a valid reason for the refusal, then the employer is required to seek alternatives, to the point of undue hardship. If there is no valid reason for the refusal, then the employer’s duty to accommodate will be considered to be fulfilled.
This article was originally published in the June 24, 2008 edition of the Ottawa Business Journal.