Undue hardship in Canada is the legal point where an employer is no longer required to provide further accommodation because doing so would create an excessive burden under the human rights law that applies to the workplace.
The threshold is high. Employers are expected to accept some cost, inconvenience and disruption when accommodating protected employee needs. An accommodation does not become undue hardship simply because it is difficult or different from the employer’s normal way of doing things.
If your employer says it can’t accommodate you because of “undue hardship,” don’t assume that ends the matter. The employer must be able to support that conclusion. If your job is at risk, don’t resign or sign a termination package before understanding your rights.
On This Page:
- 1. What Undue Hardship Means
- 2. What Employers Must Prove
- 3. What Is Not Undue Hardship
- 4. Examples of Undue Hardship
- 5. Refused Accommodation & Compensation
- 6. Undue Hardship Across Canada
What Does Undue Hardship Mean?
Undue hardship is the limit on an employer’s duty to accommodate.
Employers must make reasonable workplace changes for needs protected by human rights law. Accommodation can include modified duties, different hours, medical leave, a gradual return to work or changes to workplace rules.
The employer does not have to provide accommodation once the legal threshold of undue hardship is reached. But some hardship is expected before that point.
Who has to prove undue hardship?
The employer must establish that further accommodation would cause undue hardship.
It is not enough to rely on assumptions or a blanket workplace policy. The employer should be able to show what accommodation options were considered and why reasonable alternatives would not work.
What Must an Employer Prove?
The factors used to determine undue hardship depend on the human rights law that applies where you work.
Relevant considerations can include:
- Financial cost: Whether the cost is excessive in light of the employer’s actual resources.
- Health and safety: Whether accommodation creates a serious risk that cannot reasonably be reduced.
- Employer size and resources: Larger employers can have options that are not realistically available to much smaller organizations.
- Operational impact: In jurisdictions where it is relevant, whether accommodation would seriously interfere with the employer’s ability to operate.
- Available alternatives: Whether other reasonable ways of accommodating the employee were properly explored.
These factors are not identical across Canada. Ontario, in particular, has a specific statutory undue-hardship test, which is why provincial rules matter.
Can cost amount to undue hardship?
Yes, but the fact that accommodation costs money is not enough.
The employer must show that the financial burden reaches the legal threshold in its circumstances. A cost that is excessive for a very small employer can be manageable for a large organization.
Can safety concerns amount to undue hardship?
Yes. A serious health or safety risk can establish undue hardship when it cannot reasonably be reduced through accommodation.
The risk must be based on evidence, not assumptions about an employee’s disability or abilities.
What Is Not Undue Hardship?
Ordinary inconvenience, workplace preference and unsupported concerns do not establish undue hardship.
An employer cannot normally refuse accommodation simply because:
- Changing a schedule is inconvenient
- The employer wants everyone to follow the same policy
- Coworkers think the accommodation is unfair
- Modified duties require additional planning
- The employee cannot immediately return to full duties
- The employer assumes accommodation will cost too much
A policy such as “we don’t offer modified work” or “everyone has to work the same schedule” does not override human rights obligations.
Do employees always get the accommodation they request?
No. Employees are entitled to reasonable accommodation, not necessarily their preferred solution.
Accommodation is a cooperative process. An employee must provide reasonably necessary information and consider reasonable alternatives that properly address the protected need.
Examples of Undue Hardship
Undue hardship can arise when reasonable accommodation options have been exhausted and the remaining alternatives create an excessive burden under the applicable law.
For example, an employer can reach undue hardship where a safety-critical job cannot be performed without a serious remaining safety risk, even after reasonable alternatives have been explored.
By contrast, a manager refusing modified hours because scheduling would become inconvenient is not enough on its own.
A long medical absence also does not automatically establish undue hardship. The employer must consider the employee’s actual prognosis, restrictions and reasonable accommodation options rather than treating the passage of time as the entire test.
For more scenarios, see our detailed guide to undue hardship examples.
What If Your Employer Refuses Accommodation?
An employer that refuses reasonable accommodation without establishing undue hardship can violate human rights law.
Warning signs include an immediate refusal, reliance on a blanket policy, no real discussion of alternatives, unsupported cost or safety claims, or a termination before reasonable accommodation options have been explored.
An improper refusal can amount to workplace discrimination.
Can failed accommodation lead to constructive dismissal?
Yes. A serious failure to accommodate can amount to constructive dismissal when the employer fundamentally breaches the employment relationship.
This can arise when an employee is forced to work contrary to legitimate medical restrictions, subjected to a major unwanted change instead of reasonable accommodation, or placed in circumstances that make continued employment unreasonable.
What compensation can you receive?
A failure to accommodate can lead to human rights compensation, lost-income remedies and full severance pay when employment has been terminated or constructively dismissed.
If your employer ends your employment, have your complete severance entitlement calculated before signing a release. Employment standards minimums are not necessarily your full entitlement.
Learn more about the rules in some of Canada’s largest provinces:
Undue Hardship FAQs
Is inconvenience undue hardship?
No. Ordinary inconvenience does not meet the legal standard for undue hardship. Employers are expected to make meaningful adjustments to accommodate protected needs.
Can an employer require you to be 100% recovered?
Not if you can perform useful work with reasonable accommodation that does not create undue hardship. An automatic “100% recovered” rule can ignore the obligation to consider modified work or other reasonable arrangements.
Does a long-term disability automatically create undue hardship?
No. The length of an absence does not by itself establish undue hardship. The employee’s prognosis, ability to perform essential duties with accommodation and reasonable prospect of returning to work all matter.
Get Help When an Employer Claims Undue Hardship
An undue-hardship claim can put your job and income at risk. Your employer can refuse accommodation, impose an unwanted return-to-work arrangement or decide that your employment should end.
Samfiru Tumarkin LLP helps non-unionized employees challenge improper undue-hardship claims and failed accommodation, protect their employment rights, and secure the full severance pay and compensation they are legally entitled to receive when their job has been damaged or terminated.
If your employer says no further accommodation is possible, don’t resign or sign a severance release before having both the accommodation decision and your full financial entitlement reviewed by one of our employment lawyers.