Coca-Cola Termination Part 2: Accommodation and Undue Hardship
In Part 1 of this series, we explored the doctrine of Frustration of Contract—the legal concept Coca-Cola used to justify the termination of Shawne Hopkins, a 35-year employee of the company, following a workplace injury.
Today, we look at a related concept: the duty to accommodate. When Coca-Cola ended Mr. Hopkins' employment, they reportedly claimed that not only was the contract frustrated, but that accommodating his resulting disability had reached the point of undue hardship. But what does that actually mean in the eyes of Canadian law?
The Broad Definition of Disability
To understand the duty to accommodate, we must first understand what the law considers a "disability."
The legal definition of a disability in employment law is very broad. It has been consistently interpreted to include temporary injuries or illnesses, which could include anything from workplace injuries, any physical injuries that restrict an employee’s ability to perform their duties, mental health conditions, and ongoing chronic illnesses, to what people would ordinarily think of as a disability, whether mental or physical, and even to temporary “conditions” like pregnancy. In the landmark Supreme Court case Québec v. Montréal, 2000 SCC 27 (often referred to as the Mercier case), Justice L’Heureux-Dubé emphasized that the goal is to eliminate arbitrary exclusion:
“The purpose of Canadian human rights legislation is to protect against discrimination... its more specific objective is to eliminate exclusion that is arbitrary and based on preconceived ideas concerning personal characteristics, which... do not affect a person’s ability to do a job.”
A Dialogue of Flexibility: The Accommodation Process
The duty to accommodate isn't a one-way street; it is a collaborative process. It requires a sincere dialogue between the employer and the employee to find a solution that allows the worker to continue contributing without causing the employer undue hardship.
This could play out in any number of ways like:
Allowing an employee to work from home on days they have medical appointments;
Modifying a work schedule to allow for physical therapy; and
Lightening physical duties or providing specialized equipment.
While an employer is required to arrange the workplace or adjust duties, there are limits. They are generally not required to change the fundamental nature of the employment relationship—for example, by creating a brand-new, unproductive position that didn't previously exist.
The High Bar: What is Undue Hardship?
The central question is always: How far must an employer go? This analysis is highly context-specific. What constitutes undue hardship for one employer might be reasonable for another. Common factors include:
Financial Cost: Would the accommodation be so expensive it threatens the viability of the business?
Interchangeability of the Workforce: Can other staff members take on certain tasks?
Rights of Other Employees: Does the accommodation significantly interfere with seniority rights in a unionized environment?
The Size Factor
This is where the Coca-Cola case becomes particularly interesting. A small business with five employees performing heavy labour may find it easy to prove undue hardship if a worker can no longer lift heavy objects. There simply may be no other work available.
However, for a giant like Coca-Cola, the bar is significantly higher. The Supreme Court's 2008 Hydro-Québec decision noted:
“If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties - or even authorize staff transfers - to ensure that the employee can do his or her work, it must do so to accommodate the employee.”
In a large company, there is a much higher chance that the company will have administrative roles that do not require physical labour, allowing the company to reassign a worker to a role at around the same level or pay scale, without any other significant burden. They may face higher costs from retraining the worker, but unlike the small business that may not even have such a role, the relative burden is low.
Applying the Test
Based on the facts reported by the CBC, Mr. Hopkins was cleared by the Workers’ Compensation Board to return to work, albeit in a different role. Meaning that he we know that his disability is not so severe that it prevents him from returning to work full stop.
Given Coca-Cola’s resources and various types of positions that are likely available (both physical and administrative), it seems unlikely that a suitable role could not be made available or modified. While chronic absenteeism can eventually discharge the duty to accommodate if the employee can no longer perform the core of their job, that doesn't appear to be the situation here.
If there was no genuine attempt to find an alternative role for a 35-year employee who was medically cleared to work, the company may struggle to prove they reached the point of undue hardship.
The Missing Piece: Workers’ Compensation
In Ontario, the duty to accommodate under the Human Rights Code is only part of the story. For workplace injuries, the Workplace Safety and Insurance Act (WSIA) adds an extra layer of protection: the Statutory Duty to Re-employ.
In Part 3, we will conclude this series by looking at how Workers’ Compensation boards—and specifically the WSIB in Ontario—enforce the return-to-work process.
Facing an accommodation issue at work? Whether you are an employer trying to navigate the "undue hardship" bar or an employee being told your role can't be modified, I can help.
Disclaimer:The information provided in this blog is for informational purposes and does not constitute legal advice. If you are facing a situation involving disability or termination, please contact an employment lawyer to discuss the specifics of your case.
