Employers have a legal obligation to modify workplace rules, policies, or practices in a manner that promotes respect and dignity for employees with disabilities. This obligation arises out of human rights legislation that fosters inclusivity and full participation in the labour market by protecting individuals from adverse treatment because of personal characteristics under s. 5(1) of the Ontario Human Rights Code. In other words, the employer has a duty to accommodate employees who may otherwise experience unequal treatment in the workplace because of one of or more Code-protected grounds by adjusting workplace rules or policies in manner that is tailored to the individual.
The duty to accommodate can be very simple such as allowing an employee to take time off for a medical appointment or it can involve changing certain duties within the role, modifying the hours of employment to allow for childcare duties, or providing a special screen or software for individuals with a visual impairment. Provided that the employee can still perform the essential duties of the role, the employer is obligated to accommodate the employee to the point of undue hardship. As stated by the Supreme Court of Canada in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 (CanLII), [2008] 2 SCR 561, “the purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.”
Lawyers are often consulted to assist employers in meeting their duties in the accommodation process to avoid discrimination claims. Here is a list of the top 10 things that an employer should keep in mind when an accommodation request is made by an employee.
1) Do keep a record of the accommodation request and the action taken.
Ensure that detailed and contemporaneous record-keeping occurs at every step of the process. Include a record of the accommodation options that were considered and any supporting documents to explain why they were or were not implemented. Individual employment accommodation plans (including return-to-work plans as applicable) should be provided to the employee and kept up-to-date.
2) Do obtain expert opinion or advice where necessary.
Although accommodation measures are typically based on information provided by the employee’s doctor, the employer can also request an evaluation by an external medical or other expert, at its own expense, to assist with employment accommodation.
3) Don’t be close-minded about the accommodation process. Ensure that all reasonable alternatives are canvassed with the employee.
In Brunskill v. Canada Post Corporation, 2019 CHRT 22, the Tribunal found that the employer was remiss in not exploring all options with the employee in its attempts to accommodate a return to work after sustaining a serious back injury. The complainant, a long-service employee, was excluded from the workplace from October 10, 2013 to September 9, 2014 after being temporarily accommodated with modified duties at another facility. CPC’s witness testified to the fact that they did not feel it was necessary to evaluate the possibility of offering him a position outside of Toronto even though the previous position he held was located in Malton. The Tribunal criticized the employer for not asking the employee whether he was open to positions in cities outside the GTA.
4) Do explain to the employee why a request would cause undue hardship, but only if this is the case.
The fact that an employer must accommodate an employee to the point of undue hardship presumes that some hardship will be inevitable. Accommodation is not always easy, convenient, or inexpensive and employers must consider options that may result in some hardship.
Ss. 11(2) and 17(2) of the Code lists costs, outside sources of funding, and health and safety requirements as being the relevant factors that apply when assessing whether an employer can meet the threshold of undue hardship. The larger the organization and the more resources it has available, the less likely it is that an employer will be able to meet the test for undue hardship. However, the employer is not required to create a job out of tasks not currently being performed and the employee must still be able to perform a useful and productive job for the employer: Essex Police Services Board v. Essex Police Association (2002), 105 LAC (4th) 193.
The point of undue hardship is reached “when reasonable means of accommodation are exhausted and only unreasonable or impractical options for accommodation remain”: VIA Rail at para. 130. In Thanh v. BC Ministry of Public Safety and Solicitor General, 2020 BCHRT 15, the Tribunal explained:
There may be a point at which it would be unreasonable to pursue an accommodation option. This may arise in circumstances where measures have little or no likelihood of success.
Employers must be able to produce actual evidence of undue hardship. It is inadequate for an employer to speculate about future costs and conclude that it cannot afford to accommodate indefinitely. For example, if an employee has multiple sclerosis and further deterioration is expected over time, the fact that further accommodation may be necessary in the future cannot be used as a basis for assessing the employer’s current ability to accommodate.
5) Do accept a request for accommodation in good faith.
A recent case, Lenting v. Huron Tire, 2021 ONSC 8026, is a perfect example of how an employer who took the proper steps in the accommodation process protected itself from an unfounded human rights claim.
In Lenting, an employer terminated a 22-year-old employee who had completed a drug treatment program and had admittedly been under the influence of drugs while at work. The employee filed a wrongful dismissal suit claiming that he been discriminated against due to his disability. The employer asserted that its reasons for terminating the employee were unrelated to the Plaintiff’s disability and solely due to the Plaintiff’s misconduct. Although the court found in favour of the Plaintiff for termination pay, it dismissed the claim for damages pursuant to the Human Rights Code. The overwhelming evidence demonstrated that the Defendant had engaged in the accommodation process in good faith and there were genuine issues of misconduct: the Plaintiff had failed to show up to work after his request for time off had been denied, he had harassed a fellow co-worker, and had been uncooperative during a workplace investigation. The court agreed with the employer that the reason for the termination was unrelated to the employee’s disability and even commended the employer for how it handled the accommodation process:
It is important to remember what happened in and around the date of disclosure, and that is: The Defendant provided information about its Employee Assistance Program, and a copy of its Substance Abuse Policy; it promised that he would not be terminated because of his addiction and would have his job when done treatment; it agreed to speak with and coordinate matters with his father (which the Defendant did until the Plaintiff revoked his consent); and committed to not rely on the warnings issued before disclosure. This is exactly what the right to accommodate contemplates. There is absolutely nothing else it could have done to accommodate the Plaintiff (emphasis added) (para. 37).
The court found that accommodation “was not a license for the Plaintiff to behave as he pleased.” That is to say, an accommodated employee can be terminated so long as there is no nexus between their disability and termination: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre) 2015 SCC 39 CanLII.
6) Don’t assume that an employee cannot be accommodated if they disclose a condition that may appear to be incompatible with the position.
Employers must not rush to judgment and conclude that an employee is incapable of performing a role because they disclose that they have a particular condition that appears to be at odds with the demands of the job. Unless it is patently obvious that the employee cannot fulfill the essential duties of the role, such as a truck driver who becomes legally blind, the employer has a duty to go sequentially through the steps of exploring options to accommodate. The following case highlights how mistaken an employer was to assume that an employee was not suitable for a job based on his own preconceived notions.
In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34; [2008] OJ no. 3076 (Div. Ct.) the Applicant was hired by ADGA, an information engineering firm, to work as part of a team developing military software. Prior to being hired, Lane did not disclose that he was diagnosed with bipolar disorder. However, four days after he started working, he told his supervisor about his condition and his need for accommodations (i.e., what to do if he presented signs of illness). His supervisor, concerned about whether Lane could tolerate the stress of the job which entailed long hours and high security, did his own research. Based on his cursory “investigation”, the employer decided that Lane probably could not handle the job after Lane began exhibiting signs of a manic phase. ADGA terminated him on the basis that they could not afford him taking long absences (which was purely hypothetical at that time). Lane filed a human rights complaint for discrimination based on disability.
The Human Rights Tribunal found that the employer had not fulfilled its duty to accommodate. It found that ADGA had investigation was brief and superficial and it had not considered any possible accommodations. Dismissing Lane during his 90-day probationary period did not relieve the employer of its human rights obligations because parties cannot contract out of statutory requirements. The employer’s failure to undertake the procedural component was an expensive mistake: Lane was awarded $80,000 in damages; $35,000 for general damages; $10,000 for mental anguish, and $35,000 for loss of earnings.
ADGA should have consulted a lawyer prior to this termination!
7) Don’t ask for information which isn’t reasonably related to the nature of the limitation or restriction. Respect the employee’s privacy!
It is reasonable for an employer to obtain information concerning an employee’s disability to the extent that it enables it to identify workplace restrictions and functionalities in order to create an accommodation plan. In doing so, an employer must obtain the employee’s consent. The employer cannot contact the employee’s doctor without written authorization from the employee.
8) Don’t assume that because an employee does not expressly ask for accommodation that there is no obligation to inquire.
Although it is a shared obligation, the employer bears the primary obligation for initiating accommodation. Employers should be proactive in trying to identify signs that an employee may require accommodation when performance issues arise. This is often the case when an employee is struggling with mental health and addiction issues and is less likely to disclose a need for accommodation due to stigma or embarrassment.
Employers should be on the lookout for the following signs that an employee may potentially require accommodation:
- Feedback from co-workers indicating that the employee is behaving erratically;
- A sudden drop in attendance and increase in sick leave use;
- An increase in lateness;
- Sudden changes in behaviour; or
- Unusually poor work performance.
9) Don’t accommodate the employee in a manner which results in an adverse change to the employee (i.e., a reduction in hours or a fundamental change in duties which strikes at the heart of the employment agreement).
Although it may seem obvious, it is incorrect for an employer to unilaterally change the terms of employment in way that appears to address the accommodation request if those changes are unfavourable to the employee. This often occurs when the employer believes that the purported accommodation accords with the employee’s specific condition. For example, a request for accommodation should not be implemented if it results in completely different job duties or less pay. Not only is this not accommodation it may conversely give rise to constructive dismissal and a human rights complaint!
For example, in Sidhu v. Broadway Galler, 2002 BCHRT 9, [2002] BCHRTD no. 9, the Applicant, who worked in a nursery, became pregnant and found it difficult to lift heavy objects and pull garbage cans filled with sand. She presented her employer with a doctor’s note which endorsed that she could not lift objects greater than 40 pounds or spray the trees with pesticide. Instead of working with the Applicant to modify her duties, the employer decided to significantly cut her hours. The Applicant left her job and filed a complaint under the BC Human Rights Code.
10) Do maintain confidentiality throughout the process.
Only advise co-workers in the workplace who work with the individual requiring accommodation and only to the extent of how will need to modify how they perform their work. In other words, the employer should ensure that information is released strictly on a “need to know” basis. Similarly, focus only on how the accommodation will affect their duties – do not discuss the particulars of the disability or disclose the specific medical diagnosis. Co-workers should also be advised that accommodation is a legal right that fosters inclusivity and respect and should not be viewed as a special favour. Also, ensure that any meetings about accommodation are conducted in private and out of earshot of other employees.
If you are an employer faced with an accommodation request and you are uncertain how to satisfy your duties, speak to us.