Canada: Is There A Limit To The Duty To Accommodate? The Supreme Court Of Canada Decides
07 February 2007
Article by The Labour and Employment Group
Several laws specify the maximum number of weeks or months of absence due to sickness during which an employer cannot legally terminate the employment of an employee. Similarly, almost every collective agreement contains a clause setting out the maximum amount of time that an employee can be absent from work due to illness or injury before the employment relationship will be terminated. Many employment agreements contain a similar provision.
But legally speaking, can an employer blindly apply a clause of this kind simply because it is in the collective agreement (or in a standard form of individual employment agreement) without regard for the specific circumstances of a particular employee? In its decision in the matter of the McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital general de Montréal1, rendered on January 26, 2007, the Supreme Court of Canada answered this question with a resounding 'No!', in the context of a collective agreement that provided for the automatic termination of employment after an absence of thirty-six (36) months.
The Supreme Court confirmed that while clauses in collective agreements which have been negotiated by the parties who know the enterprise best (and therefore are "a form of negotiated accommodation"), are definitely a factor to consider when assessing an employer's duty of accommodation, they "do not definitively determine the specific accommodation measures to which an employee is entitled, since each case must be evaluated on the basis of its particular circumstances".
Indeed, the decision of the Supreme Court on this matter is very clear that an employer should assess its duty to accommodate an employee on an individualized basis. In this case, the union was therefore "correct in saying that the accommodation measure cannot be decided on by blindly applying a clause of the collective agreement." Rather, the employer should review the standard provided for in the collective agreement to ensure that applying it would be consistent with its duty to accommodate.
The Supreme Court also set out some practical guidelines for employers seeking to understand the scope of their duty to accommodate and how the absences of employees should be managed. These guidelines can be of assistance to non-unionized and unionized enterprises alike. In the case at hand, the Supreme Court determined that the McGill University Health Centre (Montreal General Hospital) had in this instance fulfilled its duty to accommodate.
Amongst these guidelines was the principle that the duty to accommodate, and the undue hardship that can sometimes stem from this duty, should be assessed globally - starting from the beginning of an employee's absence. That is, all of the measures taken by an employer, as well as the employee's overall state of health should be taken into consideration and not simply the most recent denial on the part of an employer to grant a specific measure.
Furthermore, the Supreme Court also confirmed that an employer cannot be expected to continue to employ someone who has been declared disabled for an indeterminate period, and that an employee also has a role to play in instances where he or she feels that the accommodation being provided by an employer, pursuant to a collective agreement or otherwise, is insufficient. Indeed, the said employee must provide evidence that he or she will be able to return to work within a reasonable period of time.
The Supreme Court of Canada did not decide on the legality of all time-limited legislated employment protections for absences due for example to illness or pregnancy. These laws remain therefore vulnerable to be challenged in the coming years by employees who could allege, for example, that the twenty-six week period of absence for sickness set forth in the Labour Standards Act is discriminatory. That being said, in the case of McGill University Health Center, three of the nine judges expressed the opinion that such clauses do not automatically represent prima facie discrimination.
Thus while McGill University Health Centre may not have provided employers with absolute comfort in the automatic termination clauses they may have in their collective agreements, it should nonetheless be of some solace in that this case did affirm that the parties' "negotiated accommodations" are significant in assessing an employer's duty to accommodate and moreover that when an employer makes efforts to reasonably accommodate that those efforts will not go unnoticed.