Wegner and the Expanding Duty to Accommodate: Must a Large Employer Search for Another Job?
The Alberta Human Rights Tribunal decisions in the initial award in 2024 Wegner v. University of Alberta, its subsequent review in 2026 Wegner v. University of Alberta, represent an important development in the law governing the accommodation of disabled employees.
The traditional formulation of the duty to accommodate is familiar. An employer must take reasonable steps, short of undue hardship, to enable a disabled employee to continue working. Depending upon the circumstances, this may require modified hours, a gradual return to work, altered scheduling, remote work, ergonomic adjustments, or the removal or redistribution of certain duties.
The employer is not ordinarily required to create an entirely new position.
Wegner, however, raises a different question. When the employee’s existing position is being eliminated, must a large employer actively search its organization for another suitable position?
The Tribunal’s answer is yes.
The Facts
Monica Wegner was a long-service employee of the University of Alberta. Her position was Communications Strategist – Marketing and Communications with the Alberta School of Business.
Beginning in 2015, she took a series of compassionate and medical leaves. By July 2017, her medical team had cleared her for a graduated return to work, subject to a permanent accommodation requiring half-time employment. She formally requested accommodation and ultimately returned under a work-trial arrangement. Independent medical and functional assessments confirmed her need for permanent 0.5 FTE employment.
The University accommodated a number of her restrictions. She was permitted reduced hours, flexible scheduling and some work from home.
The difficulty was that the University had already determined that her position would disappear as part of a restructuring. In December 2017, she was advised that her position was redundant and her employment was terminated.
Accommodation of the Existing Position Was Not Enough
The University argued that it had accommodated Wegner’s medical restrictions during her return to work and that the eventual termination resulted from restructuring rather than her disability.
The Tribunal rejected this argument.
It found that, while the University was obtaining functional and medical assessments and facilitating Wegner’s return, it already knew that her existing position was to be eliminated. The Tribunal concluded that there was no genuine intention to return Wegner to continuing employment and characterized the accommodation process as a temporary measure pending termination.
This is significant. The case was not based upon a simple failure to modify Wegner’s existing job. To a substantial extent, the University had modified it successfully. The problem was that the University treated the accommodation obligation as confined to that position even though it knew the position itself was about to disappear.
The Obligation to Search for Other Work
The most important passage in the 2024 decision is the Tribunal’s finding that there was “no evidence that the respondent searched for positions that the complainant might return to,” having regard to her restrictions.
The University employed approximately 15,000 people. One of its own witnesses estimated that there may have been 100 to 200 positions in communications, marketing, fundraising, development and alumni relations. The Tribunal relied upon this evidence in concluding that the University had breached its duty to accommodate.
Wegner testified that she could have worked in communications, marketing, fundraising or alumni relations. A University witness conceded that she could have worked in another capacity but could not explain why nobody had explored that possibility.
The Tribunal therefore imposed an obligation extending beyond modification of the existing job.
The University was required to consider whether Wegner’s continued employment could be achieved elsewhere within the organization.
Prescot: The Doctrinal Bridge
The Tribunal relied upon Prescot v. Alberta Health Services, 2023 AHRC 30.
In Prescot, the employee suffered from a medical condition that made chronic exposure to certain water-damaged buildings unsafe. She proposed several accommodation possibilities, including remote work, alternative locations and a temporary role while Alberta Health Services continued searching for permanent work that would meet her medical restrictions.
The Tribunal held that an employer must engage with an employee for the purpose of generating options that would enable the employee to return to work safely. It criticized AHS for failing to meaningfully pursue the alternatives raised by Prescot and specifically considered such possibilities as remote work and the rebundling of duties.
There is, however, an important distinction between Prescot and Wegner.
Prescot herself was actively generating accommodation alternatives. AHS was faulted for failing to meaningfully investigate those proposals.
In Wegner, the criticism went further. The University was faulted because there was no evidence that it had itself searched for other positions that Wegner might perform.
The duty was therefore not simply to assess an alternative placed before the employer. It included a positive obligation to look for one.
Fair v. Hamilton-Wentworth Is Also Distinguishable
Fair v. Hamilton-Wentworth District School Board, is an important predecessor, but its facts are materially different.
In Fair, the employer was aware of actual alternative positions that were available to the employee. An area supervisor position became vacant and a Staff Development Supervisor position was advertised. The Tribunal found that Fair could have been placed into one of these positions and ultimately ordered her reinstatement to suitable alternative employment.
The failure in Fair was therefore the employer’s failure to offer or place the employee into suitable positions of which it was already aware.
Wegner potentially establishes a broader obligation.
There was no specific identified vacancy before the Tribunal which the University had knowingly withheld from Wegner. Rather, the Tribunal relied upon the size of the University, the number of potentially relevant positions within it, and the absence of evidence that anybody had conducted a search for suitable alternative employment.
The distinction can be expressed simply.
- Fair involved a failure to offer known available positions.
- Prescot involved a failure to meaningfully investigate concrete accommodation alternatives advanced by the employee.
- Wegner involved a failure to conduct the search itself.
The Judicial Review
The 2024 Tribunal awarded Wegner damages but failed to meaningfully address her request for reinstatement.
On judicial review, the Alberta Court of King’s Bench upheld the Tribunal’s discrimination finding as reasonable but found the remedy decision unreasonable because reinstatement had been a central remedy sought by Wegner and the Tribunal had failed to analyze it.
The Court described reinstatement as “a, if not the central remedy requested” and directed the Tribunal to determine whether reinstatement was appropriate. It further held that, if reinstatement were ordered, the Tribunal could revisit and amend the existing damages award.
The matter therefore returned to the Human Rights Tribunal.
Reinstatement Eight Years Later
In Wegner, 2026 AHRC 107, the Tribunal ordered reinstatement.
The University argued that more than eight years had passed, Wegner’s original position no longer existed, the institution had undergone significant restructuring and her current medical circumstances might require reassessment.
The Tribunal rejected these arguments. It emphasized that the University remained a large employer with numerous faculties, departments and affiliated institutions. It concluded that Wegner could be reinstated elsewhere within the organization and stated that, if necessary, she could be retrained.
The actual order is particularly important.
The University was directed to reinstate Wegner to a position reasonably equivalent or comparable to the position she had occupied when the discrimination occurred. It was required to take reasonable steps and make reasonable efforts to find such a position. Once she was reinstated, the University was also required to take reasonable steps to accommodate her disability. Her seniority, pension contributions, health benefits and other employment entitlements were to be appropriately adjusted.
There are therefore two distinct obligations in the order.
First, find a reasonably equivalent position.
Second, accommodate Wegner’s disability in that position.
Does Wegner Require the Creation of a Job?
Strictly speaking, no.
Neither Wegner decision states that the University must invent a position that does not otherwise exist. The 2026 order requires the University to find a reasonably equivalent or comparable position.
The traditional rule that an employer is not ordinarily required to create an entirely new position therefore remains intact.
The practical scope of the accommodation obligation, however, may be considerably broader than that statement suggests.
Prescot contemplated temporary work, remote work, hybrid work and the rebundling of duties.
Wegner adds the obligation, on its facts, to actively search a large organization for suitable alternative employment. The 2026 decision adds that the employee may be placed elsewhere within the organization and, if necessary, retrained.
This goes considerably beyond the familiar examples of accommodation involving reduced hours, a gradual return to work or modification of the employee’s existing duties.
Size Matters
The Tribunal repeatedly relied upon the size and diversity of the University.
That is important.
A small employer with a handful of employees and positions may genuinely have no alternative employment available.
A university employing thousands of people across numerous departments is in a very different position.
The broader the organization and the greater the interchangeability of its workforce, the more difficult it may be for the employer to establish that reasonable accommodation has been exhausted without examining employment opportunities outside the employee’s immediate department or business unit.
The implications may therefore be particularly important for governments, municipalities, universities, hospitals and health authorities, banks, national corporations and other employers possessing large and varied workforces.
Liability and Remedy Mirror Each Other
One of the most striking features of Wegner is the symmetry between the 2024 liability finding and the 2026 remedy.
In 2024, the University was found liable because it failed to search for alternative employment that Wegner might perform.
In 2026, it was ordered to take reasonable steps and make reasonable efforts to conduct precisely that search.
The reinstatement order therefore does more than compensate Wegner for past discrimination.
It effectively requires the University to complete the accommodation exercise that should have been undertaken before her employment was terminated.
Damages Remain Outstanding
The damages issue is not yet concluded.
The Court of King’s Bench specifically permitted the Tribunal to revisit the existing damages award if reinstatement were ordered.
Having ordered reinstatement, the Tribunal stated that it intends to reconsider the damages award and directed the parties to provide further submissions.
That further decision may itself prove important.
If the appropriate counterfactual is that, but for the discrimination, Wegner would have remained employed somewhere within the University, the calculation of wage loss, pension loss and benefits may extend considerably beyond the period originally considered by the Tribunal.
Conclusion
Wegner should not be read as establishing that an employer must create a new job for a disabled employee.
Its importance is more subtle and potentially more substantial.
Where the employee’s existing position is unavailable or is being eliminated, particularly within a large and diverse organization, the employer may be required to go beyond modifying that position and actively search for suitable alternative employment elsewhere within the enterprise.
The distinction from earlier authorities is important.
In Fair, suitable alternative positions were known to the employer but were not offered.
In Prescot, the employee herself generated potential accommodation solutions which the employer failed to meaningfully pursue.
In Wegner, the failure was the absence of the search itself.
The developing principle may therefore be stated simply:
An employer need not create a new job, but a large employer may be required to look for one that already exists.