Monday, 2 March 2015

Duty to Accommodate Does Not Include Allowing Employee to Send Customers Away

There is a lot of confusion with respect to what measures an employer must take in order to accommodate an employee with a disability.  While employers must be prepared to make modifications to an employee's duties, such as adjusting hours of work, providing modified duties during periods of recovery, tolerating some absenteeism or waiving workplace rules that have a discriminatory effect, it is often difficult to assess whether an employee is able to perform the "essential duties" of the job, even with these accommodations.  A recent decision of the Human Rights Tribunal of Ontario (the "HRTO") illustrates where a request for accommodation goes too far.

In Pourasadi v. Bentley Leathers Inc., the Applicant was a store manager at the store, which sells luggage, hand bags, wallets and similar merchandise. As a store manager, the Applicant was required to work alone in the store for almost 50% of her weekly hours of work.  The rest of the time (late afternoons/evenings and Saturdays), one or more staff members were also present to assist customers. Although a manager, the Applicant was required to spend most of her workday doing customer service or merchandising and maintaining the store.  The Applicant injured her right wrist, unpacking a box, and subsequently developed issues with both arms (due to overcompensation for the original injury). For over a year, the employer accommodated the Applicant's restrictions, until she went off for surgery on her right arm.  She subsequently returned to work, but continued to have restrictions that prevented her from performing all aspects of the store manager job while alone in the store.  For a period of time, the employer scheduled an additional employee to perform the more physical duties in the store, but after a time the WSIB determined that the store manager job was not suitable for the Applicant, bringing this arrangement to an end.  When the employer determined that it could no longer accommodate the Applicant, she commenced an Application under the Human Rights Code, alleging that the employer had discriminated against her on the basis of disability by failing to accommodate her needs.

 At the HRTO, the scope of the duty to accommodate was raised as a preliminary issue.  The Applicant claimed that as part of its duty, the employer should permit her to defer tasks (such as merchandising and housekeeping) to other staff in the store, and that she should be allowed to ask customers to come back to the store at another time (when another employee was present) if the customer required assistance that was outside her restrictions.  The employer argued that these measures amounted to stripping away the essential duties of the job, and exceeded the employer's duty to accommodate.

After hearing the parties' argument, the HRTO rejected the Applicant's submissions.  With respect to the argument that the Applicant should be deemed capable of performing the essential duty of customer service by assisting customers "most of the time", the Tribunal found (at para. 31):
... In my view, based on the agreed upon facts, assisting customers constitutes over two thirds of the duties of the Store Manager position. As well, according to the agreed upon facts, Store Managers typically are assigned to work alone 19.5 hours per week. Based on these facts, I find that it is an essential duty of the Store Manager position to assist customers. In my view, the proper way of framing the essential duty relevant to this case is that it is an essential duty to "assist customers", not to assist customers "most of the time". In my view, if a duty is essential, it is a duty that is required to be performed whenever there is a need to perform it.
Given that being able to assist every customer was an essential duty, the proposed accommodation amounted to 'exempting' the Applicant from performing that essential duty.  The employer's duty to accommodate did not extend that far.  Based on its finding that the accommodation proposed by the Applicant did not fall within the employer's duty to accommodate, the HRTO did not make any findings regarding the argument that the Applicant should also be permitted to defer tasks to other staff.

The case is a good reminder of the limits on the duty to accommodate.  Whenever accommodation may be required, it is imperative for the employer to establish which duties are "essential" to the performance of the job before considering what measures or modifications could be put in place. If accommodation would involve removing the essential duties of the job, or exempting the employee from performing those functions (whether occasionally or all the time), the employer may not be in a position of accommodating the employee's needs without incurring undue hardship.  That is not to say that the employer may not have to consider other strategies, such as identifying other comparable, available roles that fall within the employee's restrictions and for which they are qualified.

Do you have questions about the duty to accommodate?  Need guidance on how best to provide modified duties in accordance with the Human Rights Code?  Contact Lance Ceaser for advice.


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