Accommodation not a one-way street

Employers are increasingly having to navigate complex situations involving medical absences, chronic conditions, and return-to-work planning. These cases often raise difficult questions: What information can employers request? What if the employee declines to participate in assessments? And at what point does the duty to accommodate end? 

The Saskatchewan Court of Appeal’s 2024 decision in Baildon (Rural Municipality) v. Gronvold, 2024 SKCA 73, provides guidance on these challenges. The court clarified the scope and limits of the duty to accommodate and confirmed that an employee’s own conduct may bring that duty to an end. This article reviews key takeaways from Baildon and provides practical guidance for employers. 

Under The Saskatchewan Human Rights Code, employers must accommodate disability to the point of undue hardship. Disability is interpreted broadly and includes physical, mental, episodic, temporary, and injury-related conditions. The duty to accommodate is triggered when a workplace rule or requirement adversely affects an employee because of disability. Once triggered, employers must consider reasonable adjustments to allow the employee to remain meaningfully engaged in the workplace.  

Accommodation must be reasonable, not perfect, and may include things like modified duties, adjusted schedules, leave, or return-to-work plans. The duty continues only until undue hardship is reached – when further accommodation would be impracticable, speculative, or incompatible with legitimate operational needs. Importantly, accommodation is a shared process: employers must make good-faith efforts to identify solutions, and employees must meaningfully participate, provide adequate information, and co-operate with reasonable steps. When an employee does not do so, the employer’s duty may be exhausted. 

Extended medical leave 

Ms. Gronvold, the administrator for the Rural Municipality of Baildon, Sask., (the RM), went on medical leave after a concussion in November 2014. For nearly 21 months, she supplied only short notes stating she was unfit for work, without the functional information the RM repeatedly requested. The RM approved two return-to-work attempts in December 2014 and April 2015, both of which failed after only a few days.  

In June 2016, her physician suggested another limited return to work. Because previous attempts had failed and medical information remained insufficient, the RM asked for further details and requested an independent vocational assessment to determine her capacity. The employee declined to participate unless paid full wages during the assessment, and no information was provided. 

Facing nearly two years of absence, no clear medical prognosis, and a statutory obligation to maintain an administrator under The Municipalities Act, the RM filled the position. The employee filed a human rights complaint, which ultimately reached the Court of Appeal. 

Employer met duty to accommodate 

The Court of Appeal overturned the lower court’s decision, with the result being the dismissal of the human rights complaint, for the following reasons:  

• The RM had already provided substantial accommodation: The court noted that the RM had accommodated the employee for an extended period (nearly two years of medical leave) and had supported two return-to-work attempts. These efforts demonstrated flexibility and a willingness to accommodate, contrary to the lower court’s view that the RM had taken a rigid approach.  

• The RM made repeated, reasonable efforts to obtain the necessary information: The court emphasized that employers are entitled to functional information sufficient to assess whether and how duties can be modified. The RM repeatedly requested this information and followed up when the physicians’ forms were incomplete. Without it, the RM could not evaluate accommodation options. 

• The RM reasonably required an independent vocational assessment: Given the failed return attempts, prolonged absence, and insufficient medical detail, the RM’s request for a vocational assessment was reasonable. 

• The employee’s refusal to participate hindered the accommodation process: Accommodation requires meaningful co-operation from both parties. The employee refused to attend the vocational assessment unless she was paid full wages during the testing period and did not provide the functional information repeatedly requested. The breakdown was therefore attributable to the employee. 

• Operational and statutory requirements justified filling the position: Employers must balance accommodation efforts with operational realities. In this case, The Municipalities Act required the RM to have an administrator. After nearly two years of absence and without the medical information needed to assess whether the employee could return, the RM posted and filled the position. The court held that doing so did not constitute discrimination and reflected legitimate operational necessity. 

• Because the employee’s conduct caused the breakdown, no discrimination was established: Because the accommodation process failed due to the employee’s non-cooperation, not the employer’s conduct, no discrimination was established. The court found that her refusal to participate “effectively thwarted the accommodation process and ended the RM’s duty to accommodate.” 

Shared responsibility to participate in accommodation process 

The court’s analysis in Baildon provides several practical lessons for employers: 

• Document every step: Comprehensive documentation played a crucial role in the RM’s success on appeal. 

• Request functional information, not diagnoses: Employers are entitled to know how a condition affects job performance. If medical information is vague or incomplete, employers may follow up and clarify.  

• Independent assessments are legitimate tools: When functional limitations remain unclear or treating physicians do not provide sufficient detail, independent functional, medical, or vocational assessments may be appropriate – but proceed with caution. 

• Emphasize shared responsibility: Employees must participate in good faith. When an employee does not cooperate, employers may not be required to continue pursuing hypothetical or speculative accommodations. 

• Consider operational and legal obligations: Employers must balance accommodation with organizational needs and statutory duties. Operational realities may legitimately shape what is reasonable. 

• Recognize (and seek legal advice) when undue hardship may be reached: Undue hardship arises when only unworkable, impractical, or speculative accommodations remain. When meaningful information is unavailable due to employee non-cooperation, the duty to accommodate may be exhausted. Because this assessment is fact-specific and carries legal risk, employers should seek legal advice before making this determination. 

With clear communication, documentation, and a structured approach, employers can navigate complex accommodation issues with confidence. 

Brent Matkowski is a partner in the labour and employment group at MLT Aikins in Saskatoon. Yuvraj Sagoo is an associate in the advocacy group at MLT Aikins in Saskatoon.