The circumstances that an employer must accommodate continue to expand. After all, the workplace is no longer what it used to be.
So, where does the duty to accommodate come from?
Human rights legislation across Canada, such as the Canadian Human Rights Act and the Ontario Human Rights Code (the “Code”), defines discrimination as the adverse treatment of a person on the basis of a protected ground. The legislation prohibits discrimination based on various protected grounds, including race, religion, age, sex (including pregnancy), sexual orientation, family status, gender identity and expression, disability, and many others. The specific protected grounds vary from province to province.
Employers are required to accommodate individuals to the point of “undue hardship” where the need for accommodation relates to a ground protected by human rights legislation, such as disability. Undue hardship is the limit beyond which employers are not obligated to accommodate. Employers are expected to exhaust all reasonable possibilities for accommodation before they can claim undue hardship, which is a high standard to meet. Undue hardship includes cost, health, and safety considerations. In other words, employers will not be required to risk the health and safety of others to accommodate one employee, or to put the organization on the verge of bankruptcy.
Needs, not preferences
Employees often mistakenly assume that they are entitled to be accommodated based on their preference. Similarly, employers often overestimate their obligations and assume that if an employee is requesting a particular accommodation then the employer must accommodate the employee accordingly.
That is simply not the case. The law is very clear that employees are not entitled to their preferred accommodation, but only to a reasonable accommodation that meets their needs.
Let’s say you have an employee who is medically exempt from receiving COVID-19 vaccinations. The employee makes an accommodation request to work from home. However, based on the doctor’s note provided by the employee and the nature of the employee’s role, you determine that a reasonable accommodation would be to require the employee to physically attend at work with regular COVID-19 testing in order to ensure that their rights are protected, and at the same time, other workers are safe. The employee cannot insist on working from home, unless the only reasonable accommodation in that scenario would be to allow them to work from home. Even so, if the accommodation caused undue hardship to your organization, you can consider other options for accommodation.
Accommodation can take many different forms, but examples may include:
- leave of absence
- remote work
- removing physical barriers (e.g., building a wheelchair ramp)
- modified ergonomic conditions (e.g., specialized computer equipment)
- modified duties
- modified hours
- temporary assignments (e.g., light duties until recovery from back surgery)
- placement in a different role or position
This list is not exhaustive. The type of accommodation that is appropriate in a given scenario is based on a variety of factors, such as the employee’s needs and options for reasonable accommodation, as well as cost, health, and safety considerations. Note that accommodation can include a reduction in compensation.
Importantly, to be accommodated in their current positions, employees must be able to perform the “essential duties” of the position. Otherwise, an employer is entitled to consider accommodation options outside of the current position, such as placing the employee in a different role.
The accommodation process is a two-way street: both employers and employees have obligations to fulfill in this process. Employees must participate in the accommodation process by providing sufficient information, so their employer can make an informed decision about appropriate accommodations and how they can be meaningfully implemented. Similarly, employers are obligated to genuinely consider any request for accommodation and to take active steps to make inquiries where the employer knows or ought to know of a need for accommodation.
The objective of the duty to accommodate is to ensure the employer is engaged in a serious effort to consider and assess the issue of accommodation in all of the circumstances of the case. Any accommodation policy should be applied to the individual circumstances of the employee such that their individual needs can be considered.
How to respond to requests for accommodation
It is crucial to have an accommodation policy and process. In responding to requests for accommodation, employers would be well-advised to adopt the following practice tips:
- Have one process for responding to all requests for accommodation, even those that may seem unconventional (such as medical cannabis or childcare obligations). The process should be a two-way dialogue between the employer and the employee (and a three-way dialogue if a union is involved).
- Maintain communication with the employee throughout the process.
- Do not dismiss any requests out of hand.
- Require appropriate information, including medical documentation, if applicable, speaking directly to the employee’s ability to do the job. Do not request specific diagnosis, information irrelevant to job duties, or the entire medical file. Requests for information should be justifiable.
- Research and educate yourself. Work with the employee to understand the needs and limitations, and how the ground intersects with job duties. Do not stereotype.
- Assess whether there is a legitimate need for accommodation.
- Consider options for accommodation. Employees are not entitled to their preferred form of accommodation. Employers are entitled to ascertain what options are available and choose a reasonable option. In considering whether the accommodation would cause undue hardship, and in comparing available options, employers can consider the cost, outside sources of funding, and health and safety requirements of the job (if any). Remember, some hardship is acceptable.
- Document all considerations and assessments. It will help prove that you have taken every step up to the point of undue hardship, and, as a result, you will be in a much stronger position to defend a discrimination claim.
- If you cannot accommodate without undue hardship, clearly explain this to the employee and be prepared to show why this is the case.
- Maintain confidentiality.
- Monitor and adjust the steps taken, as the employee’s needs or the employer’s circumstances might change over time.
Employers have an obligation to ensure that their workplaces are free of discrimination. Such behaviour must be immediately addressed with proper investigation and/or accommodation. In doing so, employers should remember that they are only obligated to accommodate an employee’s needs, not their preferences. Employers should not assume it is an all-or-nothing situation where they must agree to the exact accommodation requested by the employee or do nothing at all.
By Nadia Zaman