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CCCA_V3No1_Decisions-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 1/21/09 3:04 PM Page 34 Feature Soma Ray-Ellis Partner, Paterson MacDougall Toronto Honda v.Keays was a signal from the court that employees seek- “work on a regular and continuous basis without continuing to ing to be accommodated at work because of illness or injury“have have an absenteeism problem as in the past.” to cooperate with the employer in providing meaningful medical An arbitrator ruled that the employer had proven the employ- support in regard to their absenteeism,”Wilson concludes. ee would be unable, in the reasonably foreseeable future, to work “The employer does have a right to question those and to ask steadily and regularly, and that the conditions for her return to for further information, further documentation, from the work would constitute undue hardship. employee if they’re not reasonably satisfied with the documenta- The Supreme Court held that the test for undue hardship “is tion that they’re getting from the employee’s doctor.The employ- not whether it was impossible for the employer to accommodate ee can’t refuse to be cooperative.” the employee’s characteristics.”Although an employer doesn’t have “a duty to change working conditions in a fundamental way, it Hydro-Québec v. Syndicat des employé(e)s does have a duty,if it can do so without undue hardship,to arrange In another decision that deals with worker absenteeism, the the employee’s workplace or duties to enable the employee to do Supreme Court elaborated on employers’responsibilities in Hydro- his or her work.” Québec v. Syndicat des employé(e)s and examined their duty to The court added that the test “is not total unfitness for work in accommodate disabled employees. the foreseeable future.If the characteristics of an illness are such that This decision goes a long way towards clarifying an employer’s the proper operation of the business is hampered excessively,or if an role in accommodating an employee.It“sets the outer boundaries employee with such an illness remains unable to work for the rea- of what the test of undue hardship is,”says Soma Ray-Ellis,a part- sonably foreseeable future even though the employer has tried to ner and head of the Employment,Privacy and Public Law Group accommodate him or her, the employer will have satisfied the test. at Paterson, MacDougall LLP in Toronto, although “it doesn’t “The employer’s duty to accommodate ends where the change the steep requirements of the test.” employee is no longer able to fulfill the basic obligations associ- The employee, who suffered from mental and physical prob- ated with the employment relationship for the foreseeable lems, missed 960 days of work over the course of seven-and-a- future,” the court concluded. half years.The employer had adjusted her working conditions to The Supreme Court didn’t say the employer went beyond the call accommodate her limitations,but when she was dismissed in July of duty in trying to accommodate the employee over the course of ALENA GEDEONOVA 2001,she had been absent from work since February of that year. seven years.As Ray-Ellis says,the employer“still had to jump through A psychiatric assessment said the employee would not be able to a lot of barriers to get to the point of undue hardship. 34 CCCA Canadian Corporate Counsel Association SPRING 2009