Be accommodating

Having determined that the grievor could not perform any existing job, the employer was obligated to turn its attention to whether, and in what manner, existing nursing jobs could have been adjusted, modified or adapted short of undue hardship to the hospital in order to enable the grievor to return to work despite her physical limitations." As part of the remedy, the board ordered the hospital to "conduct a thorough examination of its work place in order to ascertain how, without incurring undue hardship, it can adapt or modify a nursing job (or jobs) so that the grievor's physical disability can be accommodated." Other recent labour arbitration awards have reinforced this point.

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But this much is clear to date: The duty requires more from the employer than simply investigating whether any existing job might be suitable for a disabled employee.

Rather, the employer is expected to determine whether other positions in the workplace are suitable for the employee or if existing positions can be adjusted, adapted or modified for the employee.

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.

This responsibility requires the employer to look at all other possible positions.

Recent cases have said that the employer's accommodation efforts must be "serious", "conscientious", and it must demonstrate its "best efforts".

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.

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.

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