We often discuss the duty to accommodate in the context of human rights, and we all know that the duty extends “to the point of undue hardship”. But as another year comes to an end, it is clear that there is still a lot of confusion when it comes to what this means in practice. While a blog post is no place for a thorough review of the law, it is helpful to confirm some key points:
- The purpose of the duty to accommodate is to allow those who can work to do so despite their limitations
- The duty to accommodate has two components:
- A procedural duty and
- A substantive duty
- The duty to accommodate does not require that organizations change the nature of an individual’s employment in a fundamental way or create a new position to allow them to work
- The onus is on the organization to show that there was no reasonable way to accommodate without causing undue hardship
- Undue hardship is not easy to establish, but it does not mean “impossibility”; the threshold is not that high
- As is usually the case in the world of Employment Law, every situation will be assessed based on its particular set of circumstances.
When we work with our employer clients, we often begin by explaining the fundamental nature of the duty to accommodate: to allow people who can work to do so, with some accommodation. We also explain what the duty to accommodate is not: a requirement that you pay someone not to work, or to perform a “made up” job that is not really necessary.
With that context, we then explain that bald assertions along the lines of “that is not the way we operate”, “we have never done it that way”, “it will be too expensive”, are not sufficient to satisfy your obligation; there is an onus on the employer to provide evidence that a potential form of accommodation would cause undue hardship. It must be borne in mind that the fact that the limit is “undue hardship” makes it clear that employers are expected to incur some degree of hardship in order to accommodate.
The procedural duty
The duty to accommodate is not only concerned with the outcome, but with ensuring that employers make a genuine effort to assess their ability to accommodate the worker in question.
Responding to a request for accommodation is not a one-time discussion but a process. The employer is entitled to receive all relevant information about the employee’s disability, so that they can assess any limitation on their ability to carry out their duties, the prognosis for recovery, and any ability to perform modified or alternate work.
Assessing undue hardship
The employer must then undertake a genuine and detailed analysis of how the employee could be accommodated and what impact that might have on the organization.
When considering whether undue hardship exists, the most common issues are cost, safety, and the impact on operations, although others will be considered when they are relevant.
As mentioned above, employers do not have to accommodate to the point of impossibility. However, employers should check their accommodation policies to ensure they have not inadvertently imposed a higher standard on themselves. Policies which say something like “we will make every effort to accommodate…” or “we will do everything we can…” may sound nice, but they arguably establish a greater burden on the employer.
Creating a new job?
The employer does not have a duty to change the fundamental nature of the employment relationship, but the duty to accommodate can require rearranging the employee’s workplace or duties to enable the employee to carry out their work. One topic of occasional debate is whether this goes beyond rearranging duties and requires the creation of a new role that did not previously exist. Generally speaking, the answer is no.
In Ontario English Catholic Teachers’ Association v Hamilton-Wentworth Catholic District School Board, the Arbitrator considered the issue of whether accommodation required that the school board create an “above-complement” position. The employee was a high school teacher who had been on a medical leave since September 2000. He sought a return to work seven years later, and the accommodation requested involved the creation of an above-complement job. The school board employer refused based on cost, but provided no substantial evidence of the economic impact of doing so.
The arbitrator noted that while creating a job is not usually required as it is seen as reaching the point of undue hardship, the evidence showed that the school board had done that before in the course of accommodation. The fact that the school board witnesses could not recall ever denying such a request was found to be evidence that, at least for this workplace, creating a new role would not constitute undue hardship. As I said at the outset, every case must be considered based on its own particular facts. While the general rule may say one thing, it is always open to the parties to adduce evidence to refute it. The onus is on the employer to establish undue hardship. In this case, there was absolutely no evidence of a genuine effort to consider the request. As a result, the Arbitrator found that the employer had failed to discharge its duty to accommodate and, in particular, its procedural duty. Damages were awarded to the subject employee for the breach of human rights legislation.