If the employee cannot, then determine if he or she can perform his or her existing job with modifications.If the employee cannot, then determine if he or she can perform another job in its existing, modified or "re-bundled" form. The Extent of the Employer's Duty The considerable weight that the duty places upon the employer is demonstrated in a recent award from Alberta.Other assignments as a receptionist and a special project clerk proved to be too demanding for her physical limitations.
In its award, the board said it is not sufficient for the employer to show that its employee could not perform any of the current job descriptions.
It must also be able to show that the job descriptions cannot be altered without undue hardship: "The duty to accommodate requires more than determining that an employee cannot perform existing jobs.
The results of this comparison will vary from case to case.
The employer bears the burden of proving that the accommodative measures would amount to undue hardship. Boundaries on the Employer's Duty to Accommodate The duty to accommodate in Canadian labour law is not limitless.
This responsibility requires the employer to look at all other possible positions.
Recent cases have said that the employer's accommodation efforts must be "serious", "conscientious", and it must demonstrate its "best efforts".In Re York County Hospital, the grievor, a nurse, was unable to return to her full nursing duties after suffering a work-related injury.The employer wanted to place her in a part-time clerical position, but the grievor aspired to become an educator with the hospital, which would have required training.The arbitration board ruled for the union, deciding that the clerical position was not the only available accommodation possible for the employee: "We accept that the grievor received very little, if any, training.In retrospect, and in view of the grievor's present career goals, it would have been prudent for the employer to have arranged for training in the education department." Arbitrator Richard Brown, in Re Mount Sinai Hospital, has laid out the governing principles of the employer's duty to accommodate.Arbitrators and the reviewing courts have recognised that accommodation always requires a balancing act between two underlying issues: the right of an employee with a disability to equal treatment, and the right of an employer to operate a productive workplace.