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Accommodation – You can’t always get what you want

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A Nova Scotia Human Rights Board of Inquiry recently tackled an accommodation issue in LeFrense v. IBM Canada Ltd., 2015, CanLII 1720 (NS HRC). Board Chair, Walter Thompson Q.C., found that IBM did everything within its power to assist its employee, Mr. LeFrense, in returning to the workplace and accommodating his sleep apnea in accordance with Mr. LeFrense’s medical restrictions. When that could not be accomplished within his current position/work team, IBM found Mr. LeFrense alternate employment that met all of his medical needs.

It’s not really clear what would prompt Mr. LeFrense to file a human rights complaint alleging failure to accommodate after being offered another position that met his needs (albeit at a lower rate of pay). Interestingly, it doesn’t seem that the alternate employment that IBM found for Mr. LeFrense was the reason for his complaint. It appears that Mr. LeFrense felt that, notwithstanding his having been provided with alternate employment within IBM, his sleep apnea disability was still not properly accommodated and, as such, he had been discriminated against.

The sticking point for Mr. LeFrense appeared to be a component of IBM’s return to work proposal that would have required Mr. LeFrense to work up to two Saturdays per month, despite the fact that his doctor suggested that he work only one Saturday per month. Mr. LeFrense’s evidence was that when he, through his doctor, countered with the one Saturday per month proposal, he expected some kind of negotiation to ensue with IBM. However, when IBM was confronted with the restrictions contained in the work schedule proposed by Mr. LeFrense and attempted to incorporate Mr. LeFrense’s one Saturday per month into his work team’s regular schedules, IBM concluded that the restrictions could not be accommodated without causing undue hardship.

Two things were clear to the Adjudicator: 1) the IBM proposal appeared to be reasonable and constituted a good faith effort by the employer to accommodate its employee, and 2) in the absence of Mr. LeFrense even attempting the IBM plan, he could not fairly be in a position to dismiss it as unworkable. Adjudicator Thompson stated, “We do not, I think, want to put ourselves in a position where we are second guessing management’s reasonable and good faith decisions on accommodation, nor do we want to put ourselves in a position where we are fiddling with a return to work plan, saying that one is acceptable, but another with a minor variation is not.”

In dismissing the complaint, the adjudicator commented on the Nova Scotia Human Rights Commission’s (the “Commission”) role in even allowing the matter to proceed past the complaint stage, “The responses were factual and complete.  Without rhetoric, they persuasively established that IBM had worked [sic] Mr. LeFrense’s disability seriously, concluded that it could not manage his demands, and found him another position. I regret that after so many years and the expenditure of so much, counsel’s responses were not accepted by the Commission then and the complaint dismissed.”

The complexities of accommodation do not require an employer to accommodate a specific and non-negotiable accommodation request. Issues surrounding accommodation are most successful, and are best resolved, when there is a two-way process involving the employer and employee working together to find a solution to a medical issue(s) that satisfies both parties and does not create undue hardship. Those who struggle with accommodation in the workplace should take solace in this decision. The obligation of the employer is not to provide perfect accommodation, nor is the employer obligated to carry out the exact wishes of an employee. There is no right to the same position at the same salary level when determining an appropriate accommodation. At the end of the day, an employer who treats the employee with dignity, respect and makes good faith efforts in accommodating the employee’s needs while considering the specific work requirements for a given position and, when that fails to suit the employee, finds a suitable alternate position, has met its obligations under the legislation.

So if you try sometimes, well you just might find, you get what you need.

Kenda Murphy

About the Author: Toronto Employment Lawyer Kenda Murphy is a lawyer with over 20 years of experience in civil and criminal litigation. Over the course of her career she has been in private practice and worked in the public sector with the Public Prosecution Service, Department of Justice and Health Association Nova Scotia. Most recently Kenda was the Associate Director & Counsel of the Employee/ Labour Relations Unit at Queen’s University.