Undue Harship

What is undue hardship?

“Undue hardship occurs if an accommodation would create onerous conditions for an employer” (1).  As noted in the blog post regarding the Duty to Accommodate, an employer must make an effort to find appropriate accommodation for an employee.  Only when an employer can claim that they’ve tried all available accommodations unsuccessfully can the hardship be considered “undue”.   What factors are used to determine if an accommodation is that which would impose undue hardship?

  1. Financial Cost: must be substantial in order to be considered undue hardship (1).  The cost of the accommodation would need to be so great so as to substantially affect productivity or efficiency of the employer (1).  Accommodations measures may result in lost revenue; however, “if this loss in revenue is offset by increased productivity, tax exemptions, grants, subsidies, etc. then undue hardship may not be a factor” (1).  Note that financial cost does not include the expense of complying with other legislation or regulation, such as building code (1).
  2. Size and resources of the employer: if an employer is larger then it can more easily absorb the cost of modifying premises or equipment to accommodate without undue hardship (1).  The size of the company and resource availability is taken into consideration when assessing undue hardship (1).
  3. Disruption of operations: to the extent that it would disrupt the employer from carrying out essential business will be factored into the determination of undue hardship (1). 
  4. Morale problems of other employees brought about by the accommodation: could be due to the negative impact of increased workload on other employees and a requirement to work too much overtime (1).  “If the employees begin to experience sleep difficulties or other health issues brought about by the accommodation of a particular employee, then the accommodation may be an undue hardship” (1).
  5. Substantial interference with the rights of other individuals or groups: “should not interfere significantly with the rights of others or discriminate against them” (1).
  6. Interchangeability of work force and facilities: refers to if an individual requiring accommodation can be relocated to another facility and in turn be replaced by an employee at that facility (1).  This is easier for larger companies with multiple sites or facilities but may be prohibitive for smaller companies with limited interchangeability (1). 
  7. Health and safety concerns:  this implies considering the health concerns that may occur when fulfilling an accommodation (1).  If the accommodation violates health and safety regulations there would be undue hardship (1). 

An employer has a duty to accommodate a returning employee from an injury or illness.  If a returning employee’s requirements for their accommodation are onerous for the employer then undue hardship must be supported via the above methods.  It is always advisable to exhaust every avenue of accommodation before trying to prove undue hardship.  If you have question regarding undue hardship and the duty to accommodate, please feel free to reach out to info@surehire.ca.

References:

  1. Alberta Public Service Return to Work Guidelines for Managers and Supervisors: http://www.assembly.ab.ca/lao/library/egovdocs/2008/alchr/173797.pdf