What is Undue Hardship?

Employers must reasonably accommodate workers up to the point of “undue hardship”. This principle has been largely defined through case law (decisions by various Courts and Tribunals in human rights matters) and means that there must be excessive and substantial disruption or interference with the employer’s operation before they can claim undue hardship. Undue hardship does not mean minor inconvenience or interference, or minor cost. Basically, accommodation measures must be taken unless the employer cannot do so without experiencing undue hardship.

Two major issues have been identified as important in defining undue hardship:

  • If the financial costs of the accommodation would be so high that it would alter the essential nature of the organization or significantly affect the viability of the enterprise. Note, however, that outside sources of funding will be considered in this determination.

  • If health and safety considerations are not met; in particular where the degree of risk, which remains after accommodation has been made, is so significant that it outweighs the benefits of the accommodation. Public safety and the health and safety of co-workers are considerations.. However, when safety standards are developed or applied, employers must accept that some moderate level of risk might be reasonably necessary in order to ensure the success of the accommodation.

Other related factors may be considered depending on the case law and the particular jurisdiction. It is important to be aware of the specific definition given to undue hardship in the legislation that applies to your workplace and to hold the employer to that definition, rather than allowing additional factors to be considered.

The point of undue hardship varies depending on the size of the employer’s operation, but the burden must be substantial and not trivial in order to be undue hardship.

As well, it’s important to consider who is the employer in determining undue hardship. For example, an employer may insist that the department in which the accommodation is required cannot afford the cost of the accommodation. This may be the case, but it is the employer (i.e., the whole company or organization) that is responsible and the question is whether it would be an undue hardship on this larger body. Departments in the Federal Public Service often rely on this argument, but the fact is that the Treasury Board is the employer and, as such, has broad resources to draw upon in accommodation situations.

The determination of undue hardship is a complex area and can change. It is important to become familiar with the legislation that covers your workplace and to seek assistance from your Component Office or your PSAC Regional Office, if you require assistance.

September 18, 2013