A recent British Columbia Human Rights Tribunal decision involving an immunocompromised employee is a timely reminder for employers of the importance and necessity of meeting the duty to accommodate.
In Flynn v. DF Architecture, an architect hired in April 2020 disclosed shortly after starting that he was immunocompromised due to arthritis and medication that suppressed his immune system. Concerned about exposure to COVID-19 in the workplace, he sought alternative arrangements. Despite multiple attempts to communicate his situation and propose solutions, the employer insisted on in-person attendance and did not meaningfully respond to his requests.
The Tribunal found that:
- The employee’s condition met the definition of a disability under the BC Human Rights Code.
- The employer knew, or ought to have known, about the disability and associated needs.
- The employer failed to investigate, consider, or implement reasonable accommodations.
The outcome was costly as the Tribunal awarded the employee nearly $184,000 in lost wages and $25,000 for injury to dignity. While the facts arose in British Columbia, the principles are applicable across Canada. All human rights statutes impose a similar obligation on employers to accommodate employees with disabilities to the point of undue hardship.
What is an employer’s duty to accommodate?
The duty to accommodate is triggered once an employer becomes aware, either directly through disclosure or indirectly through observed circumstances, that an employee may have disability-related needs. This obligation is proactive. It is not enough to wait for an employee to “prove” their condition beyond doubt or to insist they initiate every step.
What does a duty to accommodate require from the employer?
Once an employer is aware directly or indirectly of the need to accommodate an employee’s disability, they have a duty to accommodate that employee.
Key points for employers include:
- Engage in the process
Once aware of a potential disability, the employer must begin an accommodation dialogue. That includes requesting appropriate (and limited) medical information, discussing possible adjustments, and documenting the process. - Consider all reasonable options
Reasonable accommodation can include modified duties, flexible hours, remote work, or changes to workplace policies. The law does not require creating a perfect solution, but it does require a genuine, good-faith effort. - Respect privacy
Employers are entitled to enough medical information to understand the restrictions and limitations, but not a full medical history or diagnosis unless strictly necessary. Overreaching medical requests can itself be a breach. - Undue hardship is a high bar
Accommodation must be provided up to the point of undue hardship, which is assessed on objective factors such as significant cost, health and safety concerns, or operational requirements. Minor inconvenience or preference is not enough.
Why does a duty to accommodate matter for employers?
- Legal risk is real and expensive
The Flynn decision shows that failing to accommodate can lead to substantial financial liability. Human rights awards often include lost wages, injury-to-dignity damages, and sometimes orders to change workplace policies. - Process matters as much as outcome
Tribunals look closely at whether the employer engaged in a genuine accommodation process. Even if no perfect solution is found, employers who demonstrate good faith, ongoing dialogue, and flexibility are in a much stronger legal position. - It’s part of compliance culture
Accommodation obligations are not limited to physical disabilities. They extend to mental health, chronic illnesses, and conditions that may not be visible. Building processes to respond to such needs helps ensure legal compliance and promotes a positive workplace culture. - It supports retention and morale
Meeting accommodation needs is not just about avoiding claims, it’s also about retaining talent, maintaining productivity, and reinforcing your reputation as a fair and inclusive employer.
What are some practical steps for employers regarding their duty to accommodate?
- Have a clear accommodation policy that sets out how employees can request help and how managers should respond.
- Train managers and human resources professionals to recognize potential triggers for the duty to accommodate and to handle conversations sensitively.
- Document every step of the accommodation process, including requests, medical information received, options considered, and reasons for decisions.
- Be proactive – when operational or public health situations change, revisit accommodations to ensure they still meet the employee’s needs.
Why you should contact an employment lawyer?
The Flynn case is a cautionary tale as the cost of not engaging in a proper accommodation process can be far greater than the cost of adjusting in the first place. Accommodation is not optional, as it is a legal duty that, when handled properly, protects your organization from liability, strengthens employee relations, and helps maintain a resilient, adaptable workforce.
If your organization requires assistance in complying with the human rights regime, and specifically with workplace accommodations, please contact a member of the Whitten and Lublin team to discuss further. Contact us online or call 416 640 2667.
Author – Jordan Cantor
