Most employers know they have a legal duty to accommodate an employee with a disability. But what exactly is the scope of that duty and what does the accommodation include? This post will set out the basics.
What is the Duty to Accommodate?
In Canada, an employer's duty to accommodate refers to the legal obligation to take steps to eliminate disadvantage to employees or prospective employees who have a disability from a rule, practice or physical barrier that has or may have an adverse impact on that individual.
What does Accommodation Include?
Employers must accommodate employees with a disability to the point of undue hardship. This means making changes to certain rules, standards, policies, workplace cultures, and physical environments to ensure that they are not having a negative effect on an employee due to the employee's disability.
Accommodation may include:
- modifying job duties
- making changes to the physical workspace
- changing work hours, providing certain tools or technology
- allowing for time off for recovery
- reassignment to another position
Who is Responsible for Accommodation?
The process of accommodation is a shared responsibility. The employer, the employee, and the union (if applicable) are all expected to participate in the process to identify and implement a reasonable accommodation.
Employers are expected to inquire if an employee who appears to be struggling in the workplace may need assistance or accommodation, even if the employee has not formally disclosed a disability.
What is an "Undue Hardship"?
The employer's accommodation obligation is not infinite and is only up to the employer's "undue hardship". The duty to accommodate does not require employers to create a job that does not exist, promote an employee, increase an employee's pay, or remove essential duties from a job.
If the accommodation would cause undue hardship, such as an excessive cost that would impact the employer's ability to stay in business, or significant health and safety risks, then the employer may not be required to provide that specific accommodation. However, the threshold for undue hardship is high and each situation will be unique.
How Does an Employer Accommodate?
Employers are required to respect the dignity of the employee or applicant at all times throughout the accommodation process and maintain confidentiality. The first step in any accommodation plan is to simply sit down and have a conversation with your employee. Accomodation is a two-way street and your employee needs to meaningfully participate in the process.
No two accommodation plans will look the same. It will be highly individualized, depending on your employee's disability.
If you are in Ontario, please note that employers are required to accommodate employees with disabilities in accordance with both the Ontario Human Rights Code as well as the Accessibility for Ontarians with Disabilities Act (AODA).
The key is to have an open and respectful dialogue with the employee to understand their specific needs and to work collaboratively to find suitable accommodations. The goal is to enable the employee to perform their job effectively and safely.
Employers are entitled to medical documentation around the prognosis and required accommodation needs, but not the personal details of the diagnosis.
While an employer is never required to lower the standards or benchmarks an employee is to meet, the way in which the employee meets those standards and benchmarks may shift for your employee seeking accommodation.
If you need a hand navigating an accommodation issue in your workplace, we'd love to help.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.