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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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