Accommodating children learning disabilities classroom
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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.
The employer's obligation to accommodate includes the provision of training to the employee, provided that the costs of such training would not amount to an undue hardship.In Calgary District Hospital Group, a nurse with a back-related injury was preparing to return to work.Her back injury had left her unable to perform several key aspects of her regular position, including the lifting and transferring of patients.The results of this comparison will vary from case to case.The employer bears the burden of proving that the accommodative measures would amount to undue hardship. Boundaries on the Employer's Duty to Accommodate The duty to accommodate in Canadian labour law is not limitless.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.
As the board acknowledged, this form of accommodation could only work in a larger workplace, where there are enough employees to allow such a re-bundling and yet, not unduly burden these other employees with only heavy tasks in their own re-assembled positions. The arbitrator accepted that the continued employment of the employee in his regular position created an unacceptable safety risk to the grievor and to other employees as well.
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.
Whether accommodation would amount to undue hardship entails a spectrum of considerations, including, but not limited to: (i) financial cost, (ii) disruption of a collective agreement, (iii) problems of morale of other employees, (iv) the interchangeability of the workforce and facilities, (v) safety, and (vi) the size of the operations.