In a recent case between the City of Ottawa and the Ottawa Professional Fire Fighters Association, Arbitrator Burkett considered the scope of the City’s duty to accommodate a pregnant suppression firefighter who was unable to carry out interior firefighting duties. He determined that the City was not obligated to accommodate the employee in her own position because her limitations required the City to assign another employee to cover those duties. Emond Harnden’s Sébastien Huard and Marianne Abou-Hamad successfully argued that where the City identified a work assignment consistent with the pregnant firefighter’s skills, abilities, and training, and which provided the same compensation and schedule, the City satisfied its obligations under the Ontario Human Rights Code.
In this case, a pregnant firefighter was unable to carry out certain duties relating to interior firefighting and entering the hot zone (the area immediately surrounding a hazardous area) because of the related dangers. After discussions about potential positions, the employee was ultimately accommodated in a role outside of her position, on a 24-hour shift.
The Association argued that the Employer was bound to first consider whether the employee could be accommodated in her own role before looking elsewhere for a potential accommodation. The Employer was not permitted to look elsewhere until it determined that the substantive position could not be modified to accommodate the employee.
The Employer’s position was that employers must provide reasonable, but not perfect, accommodation. So long as the proposed accommodation is reasonable, there is no need to compare that accommodation with the employee’s desired accommodation or try to accommodate the employee in their own position to the point of undue hardship.
Arbitrator Burkett reviewed other arbitral jurisprudence that recognized interior firefighting as a core responsibility of a suppression firefighter. The jurisprudence also recognized that the purpose of the minimum staffing complement is to guarantee a sufficient number of firefighters to carry out a task and thereby maximize safety. As such, including a pregnant firefighter who was unable to carry out interior firefighting duties in the minimum staffing complement would constitute a safety risk.
Arbitrator Burkett found that the employee could not carry out “the most critical function of the position,” and that another employee had to be assigned to cover those duties and be included in the minimum staffing complement. Maintaining the pregnant firefighter in her own position would therefore essentially be a “make-work” endeavour because it would constitute assigning ancillary suppression duties to the employee. The duty to accommodate to the point of undue hardship does not require an employer to create “make-work”.
Arbitrator Burkett confirmed that the employer had no obligation to look first within an employee’s own position when determining an appropriate accommodation to the point of undue hardship. However, he noted that while an employer is free to propose an accommodation outside an employee’s home position, “the reasonableness test will require consideration of possible, less disruptive accommodation within the home position.”
Arbitrator Burkett determined that since the pregnant firefighter could not carry out interior firefighting or hot zone duties and could not be counted within the minimum staffing complement, the City was not required to accommodate her in her own position, but had to find other reasonable accommodation elsewhere. The City’s provision of an alternate position that maintained the pregnant firefighter’s salary and 24-hour shift arrangement, and which was consistent with her skills, abilities, and training, satisfied the City’s obligations under the Human Rights Code.
In Our View
The decision provides helpful analysis of an employer’s obligations when considering available accommodations. It confirms the well-known principle that the duty to accommodate does not require the employer to “make work.” The decision also confirms that there is no general obligation for an employer to first modify an employee’s home position before looking at other alternatives, though a decision-maker can look at whether less disruptive options existed within the employee’s own position to determine whether or not the employer acted reasonably.
On these particular facts, the City was found to have satisfied its accommodation obligations by providing a suppression firefighter with alternate suitable duties and providing her with the same compensation and schedule. However, employers are reminded that each accommodation situation will be determined on its own facts. Any employers dealing with issues related to the duty to accommodate should seek legal advice with respect to their particular circumstances.
For more information, please contact Sébastien Huard at 613-940-2744 or Marianne Abou-Hamad at 613-563-7660 ext. 259.
