Recent research from the Conference Board of Canada shows that the concept of workplace accommodation is confusing for both employers and employees. This can both prevent employees from receiving the support they need to thrive at work and expose employers to significant legal risk for potential failures to accommodate under human rights legislation.
When does accommodation become necessary, and what does it look like for both sides? What types of conditions must be accommodated? And what responsibilities do employees and employers each have in the accommodation process? This article explains how accommodation works in Ontario, what the law requires, and how to navigate accommodation requests properly.
When does the duty to accommodate arise?
If an employee is adversely affected by a workplace rule, requirement, or standard, that relates to a protected ground under human rights legislation, then the duty to accommodate arises for the employer.
Accommodation extends beyond ‘visible’ disabilities, such as ensuring the workplace and any office events are accessible for a wheelchair-using employee. ‘Invisible’ disabilities, including mental health conditions, must also be accommodated.
Example:
An employee with social anxiety might be accommodated through:
- modified people-facing duties
- adjusted performance expectations
- further mentorship or support for dealing with such duties
If a workplace rule or requirement creates a barrier to an employee’s full participation, the employer’s duty to accommodate is triggered.
What type of conditions must be accommodated?
While disability is common ground for accommodation, it is not the only ground. Employers may also be required to accommodate employees based on:
- Creed or religion (e.g. providing a prayer space at work or scheduling accommodation)
- Family status (e.g. allowing a flexible work schedule for childcare responsibilities)
Accommodation obligations apply wherever a protected ground under human rights law is engaged.
Is accommodation the employer’s responsibility alone?
No. Accommodation is a two-way street.
Employer’s responsibilities
Employer can be expected to be proactive rather than reactive. This may include:
- checking in on underperformers
- asking whether accommodation could help improve performance
- setting up the accommodation
Employees’ responsibilities
Employees are expected to:
- Inform the employer, to the best of their ability, their accommodation needs
- Provide relevant supporting information, which may include medical documentation from their health care provider. While an employee need not reveal every detail of a medical condition leading to the need for accommodation, they are expected to provide relevant information for their accommodation.
Can an employee demand their preferred accommodation?
No. Employees do not necessarily have a right to their ‘ideal’ accommodation.
If an employer suggests an accommodation that still sufficiently addresses an employee’s needs, an employee cannot refuse and hold out for their preferred outcome.
It is useful to view accommodation as a group effort to find a way for an employee to participate fully in the workplace without causing undue hardship to the employer.
What is “Undue Hardship”?
Employers are required to accommodate employees to the point of undue hardship. This is generally a high bar to meet.
For provincially regulated workplaces in Ontario, the only considerations that can be factored into are:
- costs
- outside sources of funding (if any)
- health and safety considerations (if any).
For federally regulated workplaces, while not as strictly defined, the considerations will be very similar, if not identical.
Importantly, the analysis of undue hardship is case-specific; a large, multinational corporation will find it more difficult to argue undue hardship on the basis of costs than a small business.
Why workplace accommodation matters?
Accommodation in the workplace is a fundamental right for employees, and something both employees and employers would be well-served to learn about. When done properly, it:
- allows employees to feel included and safe at work
- helps employers maximize their employees’ productivity
- when they feel comfortable.
- reduces legal risk and workplace conflict
Despite the progress that has been made, it can still be difficult to comprehend the scope and particulars of accommodation.
Conclusion
The duty to accommodate arises when a workplace rule or standard negatively affects an employee based on a protected ground such as a disability, religion or family status. Accommodation applies to both visible and invisible conditions and requires cooperation between the employer and employee.
If you are unsure how accommodation applies to your situation, or if your request has been denied or mishandled, an experienced employment lawyer can analyze your situation and discuss how the duty of accommodation applies to you, and what your best next steps might be.
If you have any questions about workplace accommodation, please contact Whitten & Lublin online or by phone at (416) 640-2667 today.
Author – Sohrab Naderi
