According to Statistics Canada, 20 percent of Canadians over the age of 15 live with one or more disabilities. Prevalence of disability increases with age, from a low of 13% among Canadians aged 15-24 to a high of 47% for persons aged 75 or older.
Given these figures, most workplaces will include employees who live with a disability. Employers should therefore be ready to receive, assess, and respond to requests for disability-based accommodation at any time. This process is known as the duty to accommodate, and in Ontario it is a legal obligation arising from the Human Rights Code.
Accommodation involves dialogue. Employees must alert their employer when they require accommodation and provide such information as to allow exploration of suitable solutions. They are not entitled to a preferred outcome. Instead, employers must only identify an accommodation, subject to undue hardship, that will be sufficient in the circumstances.
What is sometimes forgotten is that the duty to accommodate has both procedural and substantive aspects. This means that it is not enough for an employer to arrive at the right result. The process in getting there is just as important.
What is the procedural duty to accommodate?
The procedural duty to accommodate looks at the considerations, assessments, and steps taken in responding to a request for accommodation. In short, how a decision is reached. This acts as a check against employers relying upon assumptions, stereotypes, or other irrelevant information in their decision-making process.
The case of Giang v. DBG Canada Limited, 2021 HRTO 97, provides an excellent example of how the procedural duty to accommodate operates in practice. The relevant facts, as explained by the Tribunal, were as follows:
The applicant was a forklift driver in an industrial facility operated by the respondent. After he had an implantable defibrillator installed in his chest, he was cautioned by his physicians about exposure to high voltage machinery that could cause the defibrillator to deliver an inappropriate shock. The applicant believed that certain equipment in his workplace posed such a risk. He refused to work in that area when directed to do so by the respondent. The respondent terminated the applicant’s employment.
DBG Canada relied on its knowledge of the voltage level of its machinery to conclude that its workplace was safe, and no accommodation was necessary. It failed to obtain more specific information concerning how its machinery may impact upon the applicant’s defibrillator.
Only after the applicant’s job was terminated, and human rights proceedings commenced, did DBG Canada commission an expert report to examine whether its equipment posed a safety risk to the applicant. This report made two key findings:
- That it was safe, at all times, for the applicant to work in DBG Canada’s facility and near the equipment which had been the cause of concern; and
- Knowledge of equipment voltage itself was insufficient to determine whether the applicant’s heath concerns were valid – a further study of electromagnetic fields present in the workplace was necessary.
The fact that DBG Canada had relied upon general information (i.e., equipment voltage) and made related assumptions proved to be a serious error. As explained by Vice-Chair Best:
At a minimum, as part of its procedural duty to accommodate, when it received the note from the cardiologist, the respondent should have either sought further details respecting what constituted “inappropriate device therapy”, or have taken some other step to confirm that it facility was safe for an individual with a pacemaker or ICD. It only did so a year later when it commissioned the REA report. At the time, its efforts were limited to consulting with other staff members who simply confirmed that the plant used 600V power everywhere. As noted by Dr. Doemer in his evidence, simply knowing the voltage was not enough to determine whether there were electromagnetic fields in the work environment which could interfere with the operation of a pacemaker or ICD.
The result is that the respondent did not take the appropriate steps, until after the applicant had commenced these legal proceedings, to properly assess whether there were any risks to an individual with an ICD or pacemaker working in the plant.
DBG Canada ended up being correct on the merits – its workplace was safe, and the applicant required no accommodation. But how it arrived at this conclusion was flawed; it made assumptions based on generalized information and failed to consider the applicant’s unique health circumstances. This resulted in a breach of the procedural duty to accommodate and a remedial order against DBC Canada in the amount of $59,697.12.
Employers who approach a request for accommodation based on gut reactions or cursory conclusions do so at their own peril. The procedural duty to accommodate requires more.
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