It is part and parcel of a retail employee's job to interact
with customers and assist them in making purchases. However,
if an employee with a disability/injury has trouble in performing
this essential duty, how far must the employer go in accommodating
A recent Human Rights Tribunal decision dealt with an employee's
accommodation request that she should be allowed to tell customers
(when working alone) that they had to return to the store at a
later date to be assisted with purchases that the employee could
not assist with because of her disability. Thankfully, the
Tribunal found in favour of the employer. It was an essential
duty of the position to be able to assist customers and telling
customers that they had to go away and come back later was
unreasonable in the circumstances.
The employee had a wrist injury which prevented her from
performing some of the physical duties of her position, including
assisting customers in the store. Through discussions with
the Workplace Safety and Insurance Board ("WSIB"), the
employee was accepted into the Work Transition program.
Accordingly, her employment was terminated shortly thereafter.
The Issue in Dispute
The employee claimed that the duty to accommodate
under the Human Rights Code (the "Code") could
be extended to require the employer to permit her to send
customers away from the store and to defer certain tasks like
"merchandising" and "housekeeping" to other
employees to perform. The employer argued that it was
irrelevant how frequently the employee would actually turn
customers away. Instead, what was important was that the
accommodation was incompatible with the performance of the
employee's essential duties.
Notably, the employee conceded that the duty to accommodate did
not require the employer to schedule a second employee on
The Tribunal's Decision
The Tribunal found that the duty to accommodate did not extend
as far as the employee wanted. The employer did not have to
put up with a practice of telling customers to come back later when
another employee could assist who was not limited by a
disability. Doing so would result in the employee not
performing an "essential duty" of the job –
assisting customers in the store.
In making this finding, the Tribunal made a number of
helpful comments about the scope of the duty to accommodate and an
employer's ability to insist on an employee performing the
"essential duties" of his/her position. The
Tribunal found that the duty to accommodate did not require: (a)
"permanently changing the essential duties of a position or
permanently assigning the essential duties of a position to other
employees"; or (b) "exempting employees from
performing the essential duties of their position".
The Tribunal also found that an "essential duty" of a
job is one that "is required to be performed whenever there is
a need to perform it". Accordingly, the employee could
not rely on the fact that she would be able to assist customers
"most of the time". It was not a breach of the duty
to accommodate for the employer to insist that the employee be able
to assist customers all the time.
The Tribunal neglected to make a finding as to whether the
employee could defer her other duties to other employees.
Lessons for Employers
The duty to accommodate can be an onerous obligation on
employers, especially retailers. This decision is a good
reminder that the duty to accommodate does have limits, and
particularly where the accommodation would result in the employee
not performing the essential duties of the position. In the
retail environment, where employees often work alone in a store,
this case supports the argument that physical restrictions that
impact customer service may not have to be accommodated depending
on the circumstances. More bluntly stated,
customers should not be turned away because of an
accommodation in place for an employee.
However, this decision does not mean that employers should
automatically deny requests for accommodation if an employee's
duties are impacted or there is some impact on customer
service. In this decision, the employer had a history of
accommodating this employee. The employer undertook an
individualized assessment and had dialogue with the
employee. There was a written record that the employer
could rely on to demonstrate its efforts and the difficulties in
accommodating the employee who worked alone 19.5 hours per
week. WSIB had concluded that the worker should be
re-trained. In short, there was evidence that the employer
had taken reasonable steps to discharge its
accommodation obligations. That written record, made it
easier for the Tribunal to find in the employer's favour.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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