An employer's duty to accommodate is a difficult concept to
master. A recent decision from Alberta, Horvath v. Rocky View School Div. No. 41,
notes the significance of the employer's response in the
accommodation process. The decision discusses both the
response to the request in this particular case, as well as a
general policy on permanent restrictions requiring
Ms. Horvath was employed as a caretaker for the Rocky View
School Division No. 41 (the "employer"). She dislocated
her right shoulder at work and required surgery. Following surgery,
a period of leave, and rehabilitation, the Workers Compensation
Board determined that Ms. Horvath was fit to return to work and
could perform modified duties with temporary restrictions. However,
her surgeon determined that the medical restrictions would be
permanent. The employer said it did not have a suitable permanent
position for Ms. Horvath given this limitation and terminated her
What did the Tribunal say?
The Tribunal confirmed that Ms. Horvath had a disability and
required accommodation. The question then turned to whether
the employer had accommodated Ms. Horvath's disability to the
point of undue hardship.
Because the employer had terminated Ms. Horvath's
employment, the burden fell on it to demonstrate undue hardship.
The Tribunal did not accept that the employer had accommodated Ms.
Horvath to the point of undue hardship because the employer
"did not take more than cursory steps to explore what
accommodation might have been necessary to allow Ms. Horvath to
return to work with permanent restrictions." That was a
problem. Furthermore the employer had a policy of not
providing permanent accommodation, which the Tribunal found had
"no justification in law and placed arbitrary and unwarranted
restrictions on the employers duty to accommodate." Finally,
the Tribunal concluded that the employer failed to consider
alternatives for Ms. Horvath. Had the employer attempted to
evaluate Ms. Horvath's ability to contribute meaningfully to
the workplace in relation to other work or positions within its
more than 40 schools, the Tribunal believed reasonable and
practical options would likely have become apparent. Because the
employer focused solely on returning Ms. Horvath to the duties of
her position, the Tribunal concluded that there was no foundation
on which to plead undue hardship.
After a detailed analysis, the Tribunal concluded that the
employer discriminated against Ms. Horvath because of her
disability and awarded Ms. Horvath $44,658.48 in lost wages, and
$15,000 as compensation for distress and injury to her dignity.
What does this mean for employers?
Employers must always be aware of their duty to accommodate
employees with a disability, but this case highlights two important
points to keep in mind:
Even if an employer thinks
accommodation may not be possible, it should fully explore the
possibilities. A cursory consideration could result in a finding of
An employer cannot safely rely on a
policy that restricts possible accommodation without considering
whether the effects of the policy could result in
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
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