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5 Canadian Lab. & Emp. L.J. 1 (1997)

handle is hein.journals/canlemj5 and id is 1 raw text is: The Scope of the Duty to Accommodate in the Large Employment Setting Michel LeFranfois * The following article explores a broad spectrum of issues raised in the ap- plication of the duty to accommodate to large private and public employers. The question is, in the assessment of what constitutes undue hardship, whether such employers are subject to a different standard than are small employers. The author begins by identifying the parameters of the duty to accommodate as laid down by the Supreme Court. He then examines arbitral and human rights jurisprudence, setting out the issues on which there appears to be some consensus, such as the notion that accommodation must involve only the essential functions of a position, that what must be accommodated is disability and not substandard perfor- mance, and that the employee has an obligation to inform and assist the employer in the process of accommodation. The author then examines unresolved issues such as the safety of co-workers and the public, reinstatement in the current position as opposed to other positions or in available positions as opposed to a position created for that purpose. Particularly problematic are the interrelated issues of the disruption of the collective agreement/operational requirements, cost and productivity, and the rights and morale of other employees. While large employers are arguably more able to accommodate religious practices or disabilities of their employees, the author suggests that regardless of the size or the particular characteristics of an employer, the central factor in appraising undue hardship should always be productivity. Counsel to the Public Service Staff Relations Board. The views of the author are his own. The author wishes to thank his wife, Danielle Ldtourneau, and his son, Philippe G.C. LeFranqois, for their support and patience during the writing of this article.

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