Navigating the Duty to AccommodateApr 28, 2023
In Canada, the duty to accommodate is a legal obligation to ensure that employees with disabilities or other protected grounds are fully included in the workplace. This duty is a shared responsibility among employers, employees, and unions. Employers must take the lead in the accommodation process and ensure that they explore all possible accommodation options before claiming undue hardship. Employees and unions must provide sufficient information about the disability and advocate for the employee's needs. All parties must cooperate and participate in the interactive accommodations process in order to create a workplace that is inclusive and free from discrimination.
The Ontario Human Rights Commission’s policy on ableism and discrimination based on disability provides practical guidance on the legal rights and responsibilities as they relate to the ground of disability. According to this policy, for the employers to do their due diligence, they should prepare for an accommodation by:
- Understanding that the duty to accommodate is informed by three principles: respect for dignity, individualization, and integration and full participation
- Being aware that the duty to accommodate mental health disabilities is no less rigorous than the duty to accommodate physical disabilities
- Understanding that each and every accommodation case is unique and should be treated accordingly
Further responsibilities of all parties are outlined below.
Note that this site information is for educational and informational purposes only, and does not constitute medical or legal advice. The following information highlights some of the key areas of responsibility. Please review the applicable laws and regulations in your region for more details.
Employees have a duty to cooperate with their employer in the accommodation process. This means that they must provide their employer with sufficient information about their disability or other protected grounds that require accommodation. The employee must also participate in the interactive process with the employer to determine what accommodation is necessary and feasible. The employee’s responsibilities include:
- Inform the employer of need. Make accommodation needs known to the best of your ability, preferably in writing, so that the person responsible for accommodation can make the requested accommodation.
- Answer questions or provide information about relevant restrictions or limitations, including information from healthcare professionals.
- Participate in discussions about possible accommodation solutions.
- Co-operate with experts whose assistance is required to manage the accommodation process.
- Perform essential duties. Meet agreed-upon performance standards and job requirements once accommodation is provided.
- Communicate openly and clearly. Work with the accommodation provider on an ongoing basis to manage the accommodation process.
Unions also have a role to play in the accommodation process. They have a duty to represent the employee in the accommodation process and to ensure that the employer complies with its duty to accommodate. This includes advocating for the employee's needs, participating in the interactive process, and monitoring the employer's compliance with the accommodation plan. The union should inform the employee of their responsibilities to fulfill its duty to represent the employee in the accommodation process.
Employers have the primary responsibility to accommodate their employees to the point of undue hardship. This means that they must take steps to eliminate or reduce the discriminatory effects of workplace policies, practices, and physical barriers that prevent employees from fully participating in the workplace. The employer’s responsibilities include:
- The duty to inquire. Be alert to the possibility that a person may need an accommodation even if they have not made a specific or formal request. Look for signs of distress such as loss of productivity or behavioural responses.
- Good faith accommodation. Accept the person’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise. It may take weeks for an individual to be treated by a health care professional. An employer may need to accept information that is not provided by a specialist.
- Consult an expert. Get an expert opinion or advice where needed. This may mean getting an accommodation assessment completed by an Occupational Therapist.
- Active problem solving. Take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated. This may include flexible work schedules, work from home options, provision of tools and equipment at both home and in the office, and job coaching services to support return to productivity.
- Document the process. Keep a record of the accommodation request and action taken. Consider a formalized letter to look at temporary accommodations and guidelines for expectations within the accommodation process (i.e., how long will work from home and flexible work schedules be offered, when will a move back into the office be required, how will the performance metrics be affected, and when will this be reviewed together?)
- Communicate often and clearly. Provide the employee updates on the status of the accommodation and planned next steps. It can be difficult to stay in touch, especially when you are investigating policies or leadership commitment for certain accommodations or even ordering equipment that is out of stock. Set up regularly scheduled times to connect.
- Respect confidentiality. Limit requests for information to those reasonably related to the nature of the limitation or restriction and necessary to be able to respond to the accommodation request.
- Consult with the employee to determine the most appropriate accommodation. Be open to requests if they are reasonable and can be accommodated in the workplace, but don’t be afraid to set expectations about productivity and essential duties.
- Be timely. Implement accommodations in a timely way, to the point of undue hardship.
- Cover the costs. Bear the cost of any required medical information or documentation (for example, the accommodation provider should pay for doctors’ notes, assessments, letters setting out accommodation needs, etc.) Employers should also bear the cost of required accommodation. The cost of the accommodations for mental health are not costly, but they may require human resources from the manager or even a job coach. Put the time into effective training during implementation for the best success. It may take time to ensure that the accommodation is implemented properly and in a sustainable way.
What is Undue Hardship?
Employers have the obligation to provide reasonable accommodations to the point of undue hardship. Undue hardship is defined by the Americans with Disabilities Act as an "action requiring significant difficulty or expense." However, undue hardship must be examined on a case-by-case basis and can depend on different factors, such as the size and structure of the organization as well as resources available to that organization. If a certain accommodation is deemed unreasonable, the employer has the duty to identity other accommodations that would not pose such a hardship.
Types of accommodations that are generally regarded as reasonable include changes to the equipment, changes to the workstation, changes to the way tasks are done, flexible work schedules, and reassignment to an open position within the organization.
How Can Gowan Consulting Help?
At Gowan Consulting, we know the importance of creating workplaces that are inclusive, accommodating, and supportive of all employees, regardless of their physical or mental abilities. Our services can help employers promote a healthy, safe, and productive environment.
- Make a referral for a third-party, objective accommodation assessment so our Occupational Therapists can help you understand your employees’ strengths and limitations and provide strategies for success.
- Check out our training library to learn about out Complex Accommodation Training, CSA Work Disability Management Program, Inclusive Leadership Training, and more. We offer live workshops, certificate programs, and recorded webinars for employees and employers.
- Set up a consultation with us to develop a customized session or program for your workplace needs. We can help with reviewing and updating your accommodation policies and procedures.
- Looking for sustainable training and support for program development for your organization? Our membership program is for you!
- For more on all we have to offer, contact us! We want to help make the difference in your healthy business.