Does the duty to accommodate require an employer to implement an employee's preferred accommodation?

The Human Rights Tribunal of Ontario (“the Tribunal”) concluded in a recent decision, Linklater v. Essar Steel Algoma Inc., 2019 HRTO 273 (CanLII), that there are limits to accommodations; and, an employee is not entitled to their preferred accommodation.

In this case, the employee was unable to conduct his duties for a period of one month on account of a workplace injury. The employer discussed accommodation options with the employee and offered him alternate work. The temporary work required the employee to work on a different shift (five days on and two days off). As a result, the employee challenged the accommodation.

At the hearing, the employee argued that the change in schedule had a discriminatory impact as it affected a custody order for access to his children based on his previous schedule (four days on and four days off). Further, the employee argued that the change in shift resulted in a lower rate of pay. The employee received compensation for only 40 hours over 7 days instead of 48 hours over 8 days. Further, there was a loss of the night shift premium.

The Tribunal found that the accommodation offered by the employer was sufficient to meet their legal obligations under the Human Rights Code. The Tribunal confirmed that an employee is not entitled to their preferred form of accommodation. Further, an employee is only entitled to pay for work performed which can be reduced during the period of accommodation. Finally, an employer is in the best position to develop and implement an accommodation that meets the operational requirements of the business.