Accommodations or Undue Hardship? Navigating Employee Requests vs. Employer Limits

Accommodations or Undue Hardship? Navigating Employee Requests vs. Employer Limits

Canadian human rights legislation plays a crucial role in fostering workplace equality. However, in some circumstances, employers are permitted to place introduce policies and restrictions related to a bona fide occupational requirement (“BFOR”) – even if they may be considered discriminatory. This balances individual needs with necessary and reasonable restrictions for certain job-related requirements.

In McNeil v. Telus Employer Solutions (TES) (No. 2), 2024 BCHRT 166 (“McNeil”) the British Columbia Human Rights Tribunal (the “Tribunal”) provides guidance for employers faced with unreasonable requests to accommodate employees that would force the employers to experience undue hardship.

Background

In January 2018, a Telus Employer Solutions (“TES”) employee requested to work from home or an alternate location due to suspected allergies in the office building. The request was denied by TES on the basis that insufficient medical information was presented to support it. The employee subsequently filed a complaint against TES alleging discrimination based on physical and mental disability pursuant to s. 13 of the Human Rights Code.

TES argued that its decision to deny the employee’s request for accommodation was justified as the employee failed to provide sufficient medical information required to support her request to work from home or at another location. Additionally, TES argued that its request for medical information from the employee was a necessary and an appropriate step to determine if the employee had any disability-related limitation or restriction that needed to be accommodated.

The Tribunal initially dismissed the complaint in March 2022, finding that TES would be able to prove a BFOR defence.[1] However, the British Columbia Supreme Court overturned the Tribunal’s ruling and sent the case back to the Tribunal for reconsideration.[2] Ultimately, the Tribunal reaffirmed its decision to dismiss the complaint under s.27(1)(c) of the Human Rights Code, concluding that TES could justify its handling of the accommodation request and that the employee’s request was unreasonable, causing TES undue hardship.

Applying the Bona Fide Occupational Requirement Defence

At common law, if an employee brings a complaint against an employer regarding a valid discriminatory employment rule, a BFOR defence can provide an exception to allow for the employment rule to persist if the following elements are found:[3]

1. The employer must have adopted the standard it applied for a purpose rationally connected to the performance of the job.
2. The employer must have adopted the standard in good faith and in the belief it was necessary to fulfill the legitimate work-related purpose.
3. The standard must be reasonably necessary to accomplish the legitimate work-related purpose, such that the employer could not accommodate persons sharing the complainant’s protected characteristics without incurring undue hardship.

In McNeil, the Tribunal found that all the required elements were present and determined it was reasonably certain that TES would be able to prove a BFOR defence. TES’s requirement that employees work in the office contained a policy exception that allows qualified employees to work from home, provided their job performance is satisfactory. This requirement was connected to the legitimate work-related purposes of efficiency, productivity, and customer satisfaction. The Tribunal determined TES could establish a rational connection between the policy and its legitimate work-related purpose, satisfying the first prong of the BFOR defence. The second prong was also satisfied absent any evidence to the contrary.

Regarding the third prong, the Tribunal found that TES was able to prove it had met its duty to accommodate its employee’s disabilities to the point of undue hardship. The employee cited discrimination on the basis of physical and mental disabilities. She claimed her physical disability was due to an allergen she was exposed to either during her commute or in the building where she worked, and her mental disability was due to anxiety.

The Tribunal confirmed that employers are required to obtain all relevant information about an employee’s disability, including their prognosis for recovery and any limitations on their ability to work. Further, the Tribunal confirmed that an employer’s accommodation efforts are assessed only on the basis of the information available to them at the time.

The Tribunal found that TES could not reasonably ought to have known that the employee’s anxiety was a factor in her request for accommodation, so it only considered whether TES met its duty to accommodate her alleged physical disability related to an allergen. Based on the medical information available at the time, there was not a clear that there were any disability-related limitations that required her to work from home. Accordingly, TES’s refusal to allow the employee to work from home was not a sufficient basis for discrimination.

Key Takeaways

This case highlights that an employee’s request for accommodation has its limits which can be frustrated by a successful showing of a BFOR defence.

When faced with a request for accommodation, employers should first seek necessary medical documentation to ensure appropriate measures are taken and to verify the medical basis of the request and determine what accommodations are necessary and can reasonably be provided. This process can take time; employers often need additional time to obtain and assess medical information, research job functions and investigate the workplace. Ultimately, not all accommodation requests must be fulfilled. Even when thoroughly and appropriately completed, assessment may reveal insufficient information to support disability-related limitations or that an accommodation would amount to an undue hardship to the employer.

If you have any inquiries regarding unreasonable accommodations that may result in undue hardship experienced by your workplace, a member of McMillan’s Labour and Employment Group would be happy to assist.

[1] McNeil v. Telus Employer Solutions (TES), 2022 BCHRT 46 (CanLII).
[2] McNeil v. British Columbia (Human Rights Tribunal), 2023 BCSC 481 (CanLII).
[3] These elements were drawn from British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] S.C.R. 3 at para. 54.

by Kristen Shaw, Claire Wanhella, Brandon Hsu (Summer Law Student)

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2024