While accommodating

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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 employer had determined that because of her physical limitations, it was unable to place her into another nursing position.

The union maintained that the hospital had not examined ways to re-arrange the nursing positions in order to find an accommodation. It found that although the nurse was unable to perform the duties of any of the nursing positions as they were currently structured, the employer had not taken the additional step of determining whether any nursing position could be modified to accommodate her.

Her back injury had left her unable to perform several key aspects of her regular position, including the lifting and transferring of patients.

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.

That is, the hospital was required to determine if those lighter duties performed by all nurses in the unit could be re-assembled into a specific light-duty position for the grievor. The employee, a quality control inspector who worked with acids and caustics, suffered from severe epileptic seizures. With the available medical evidence indicating that future severe seizures were unavoidable, the employer terminated the employee for safety reasons.

As the board acknowledged, this form of accommodation could only work in a larger workplace, where there are enough employees to allow such a re-bundling and yet, not unduly burden these other employees with only heavy tasks in their own re-assembled positions. The arbitrator accepted that the continued employment of the employee in his regular position created an unacceptable safety risk to the grievor and to other employees as well.

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