August 21, 2020
The Newfoundland and Labrador Court of Appeal has sent a labour case back to arbitration after finding that the arbitrator’s initial conclusion—that a construction employer’s claims of not being able to safely accommodate an employee who was taking medical cannabis for chronic pain constituted as undue hardship—was based on “partial analysis”.
Speaking to Benefits Canada on the court’s decision, Rebecca Wise noted that the court “is not saying that this particular grievor ought to have been hired by the employer or that there was a means of accommodating the grievor to the point of undue hardship.”
“The issue was that the employer failed to provide evidence to demonstrate that the accommodation on an individual basis would result in undue hardship,” she said.
Rebecca also noted that employers in any industry can’t take a one-size-fits-all approach to accommodate employee disabilities and that all employers should provide an individual assessment in order to meet an individual’s requirements.
Rebecca continued to say that undue hardship is influenced by other variables.
“Similarly, whether or not accommodation rises to the level of undue hardship will always depend on, among other things, the type of accommodation, the nature of the work, the financial circumstances of the employer and other factors,” she said.
You can read more about our Employment practice on the expertise page.