Too accommodating

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In any permanent accommodation circumstance, an employee has to be able to perform the essential job duties of the existing or re-structured or newly-assigned position.

This was illustrated in the recent decision of the Federal Court of Appeal (FCA) in Holmes v. A pay clerk working for the federal government developed severe numbness and pain in her right shoulder, making it difficult to perform her duties.

Consistent with the Supreme Court of Canada's direction in O'Malley, Central Alberta Dairy Pool, and Renaud, the initial burden is upon the employer to reasonably accommodate the employee's mental or physical disability.

To prove that its accommodation efforts were serious and conscientious, an employer by law is required to engage in a three step process: First, determine if the employee can perform his or her existing job as it is.

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.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 its award, the board said it is not sufficient for the employer to show that its employee could not perform any of the current job descriptions.It must also be able to show that the job descriptions cannot be altered without undue hardship: "The duty to accommodate requires more than determining that an employee cannot perform existing jobs.

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