Worker questions employer's 'unreasonable' policy
A nursing home specialising in long-term residential care for elderly residents, is facing a legal challenge regarding its accommodation policy for employees with non-occupational disabilities.
The Service Employees International Union (SEIU), representing all its employees, except for specific categories, filed the challenge.
The said union alleged that the nursing home's accommodation policy, last revised in March 2023, does not align with established accommodation principles and contravenes its statutory obligations under the Ontario Human Rights Code.
The case discussed whether the employer adequately accommodated workers with non-occupational disabilities, with due consideration of the essential duties of their positions and the policy's adherence to the Human Rights Code.
The union argued that the Code should be interpreted and applied consistently with the employer’s goals, emphasising the recognition of each individual's dignity, mutual respect, and community participation. They argue that the Code seeks to ensure that everyone can fully contribute to the community's development and well-being.
The employer, on the other hand, said that its evaluation of employees' ability to perform essential duties inherently involves assessing potential accommodations to support them in their roles. Therefore, the accommodation process, according to the employer, includes determining whether an employee can perform essential duties and assessing any alternative work available at that time.
According to records, the employer maintained that the policy “does not contain one rule or general standard for how to determine if an employee is capable of performing the essential duties of their and/or a job without undue hardship.”
“It acknowledges that what is dignified and possible for one employee, may not be so for another. Accordingly, the employee’s individual needs and circumstances must be evaluated as such,” the employer said.
In its decision, the arbitrator said, "the employer has correctly articulated and recognized that its duty is to accommodate employees with disabilities to the point of undue hardship."
"While it may be my view that, as suggested by the union, that the policy would be improved by an explanation of that test, and how it is administers, the failure to do so does not lead me to conclude that the policy as written is unreasonable," it added.
Ultimately, it said that the union was not successful in questioning the employer's policy.
