Anatomy of "Undue Hardship" in the BC Context
Defining the Limit: What 'Undue Hardship' Really Means for Your Bottom Line Accommodation is mandatory until it reaches the point of "undue hardship."
The "Duty to Accommodate" is a cornerstone of BC law, but it is not infinite. Employers are required to accommodate employees up to the point of Undue Hardship. However, many BC business owners struggle to define where that line is drawn. Undue hardship is not merely a "minor inconvenience" or a "slight cost"; it is a high legal bar that requires the employer to prove that further accommodation would be unsustainable or dangerous.
In British Columbia, the courts and the Tribunal look at several key factors to determine if hardship is "undue." The first is financial cost. For a small "mom-and-pop" shop in Burnaby, a $20,000 renovation might constitute undue hardship, whereas for a multi-national corporation, that same cost would be considered negligible. The second factor is health and safety. If an accommodation would jeopardize the safety of the employee, their co-workers, or the public, the Tribunal is much more likely to find that the limit has been reached.
Another factor is the disruption of a collective agreement or the impact on the rights of other employees. If accommodating one person’s schedule would leave a department dangerously understaffed or force other workers to perform unsafe amounts of overtime, an employer may have a case for undue hardship. However, morale issues among other staff—such as "jealousy" over a modified schedule—rarely qualify as undue hardship.
To successfully argue undue hardship at the BCHRT, an employer must show "substantial" evidence. This means providing actual financial statements, safety audits, or expert testimony. You cannot simply claim it is too expensive; you must prove that the expense would threaten the viability of the business or fundamentally alter its nature. Understanding this threshold allows BC employers to know exactly how far they must go—and exactly when they can legally say "no."
Manager’s Checklist: Executing the Duty to Inquire
Phase 1: Recognition & Observation
[ ] Identify the "Red Flags": Have you observed sudden, dramatic changes in performance, attendance, or behavior (e.g., a high performer becoming erratic, emotional outbursts, or chronic lateness)?
[ ] Rule out the "Normal": Is this behavior a significant departure from the employee’s established baseline or societal workplace norms?
[ ] Check for Ground Connection: Is there a reasonable basis to suspect the change might be related to a protected ground under the BC Human Rights Code (e.g., physical/mental disability, family status, or substance use)?
Phase 2: The Compassionate Inquiry
[ ] Select a Private Setting: Ensure the conversation happens in a confidential, non-threatening environment.
[ ] State the Facts, Not the Diagnosis: * Avoid: "I think you’re depressed."
Use: "I’ve noticed you’ve missed four deadlines this month, which is unlike you. I’m concerned—is there anything going on that we can support you with?"
[ ] Ask the "Magic Question": "Are there any barriers in the workplace—or factors we should be aware of—that are impacting your ability to perform your duties?"
[ ] Reiterate Support: Remind the employee of available resources, such as an Employee Assistance Program (EAP) or your internal accommodation policy.
Phase 3: Information Gathering (The "Need to Know" Rule)
[ ] Focus on Limitations, Not Diagnosis: Remember that in BC, you are generally entitled to know the restrictions (e.g., "cannot lift over 10lbs" or "needs a quiet space"), not the specific medical diagnosis.
[ ] Request Functional Information: If the employee confirms a need, ask for a functional assessment from their healthcare provider that outlines what they can and cannot do.
[ ] Maintain Confidentiality: Ensure all medical notes are stored in a separate, secure file—not the general personnel file.
Phase 4: Assessment & Implementation
[ ] Review Against Undue Hardship: Can the requested changes be made without creating significant safety risks or unaffordable costs?
[ ] Document the Search for Options: Even if the employee’s "preferred" accommodation isn't possible, have you documented the alternative "reasonable" options you explored?
[ ] Establish a Review Date: Accommodation is a process, not a one-time event. Schedule a follow-up to see if the changes are working.