What is the duty to accommodate?
If an employee has needs related to a protected ground under the Ontario Human Rights Code (e.g. disability, religion, family status etc.), the employer must implement adjustments to their policies, job duties, or the work environment so that the employee can fully participate in the work environment.
The duty has two key components:
- Procedural Duty: is the obligation for employers to take steps to understand the employee’s needs, which may include consulting with the employee, conducting individualized assessments, or gathering medical information.
- Substantive Duty: is the obligation to put in place reasonable and effective accommodations to address an employee’s needs, provided these measures do not cause undue hardship to the employer. Measures may include modifying work schedules, altering duties or providing assistive devices.
It is important to remember that the employer is not required to provide the employee their preferred accommodation, but one that is reasonable in the circumstances and does not cause the employer undue hardship.
Factors that may cause undue hardship include financial costs, interference with the rights of other employees, and health and safety concerns. It is a high bar to meet. It requires employers to show that they have considered all reasonable options to accommodate the employee beyond the point of undue hardship.
Do’s for Employers:
1. Be proactive and responsive:
- As soon as an employer becomes aware (or ought reasonably to be aware) of a possible accommodation need, engage in a discussion with the employee.
- Respond to the employee in a timely manner. Delays or ignoring the employee’s requests can lead to the breach of the procedural duty to accommodate.
2. Engage in a meaningful, individualized and collaborative process:
- Meet with the employee and gain insight into their needs. Ask for relevant and reasonable information (medical documentation, functional restrictions and limitations etc.) but avoid any unnecessary or excessive requests for information.
- Make sure the process is collaborative and not one-sided. Work with the employee to identify their needs and explore solutions together. Accommodation is a shared responsibility, not something the employer decides alone.
- Document the options considered, including the rationale for the options chosen and why others were not.
- Recognize that each employee’s needs are unique and that is it not a one-size fits all process.
3. Provide reasonable accommodation, where it does not cause undue hardship:
- Provide the required adjustment for the employee, be it modified duties, flexible hours, remote work etc. unless the employer can show undue hardship.
- Maintain confidentiality of sensitive information. Accommodation information must only be disclosed on a need-to-know basis.
4. Document the process:
- Keep records of when the accommodation was requested, the dates of accommodation meetings, the information provided, measures considered and those implemented and the accompanying rationale for why they were/were not implemented. Adequate documentation may be key to establishing that the procedural duty to accommodate was met.
5. Review/re-evaluate Accommodations periodically/as circumstances change
- Review accommodations periodically to ensure the measures are appropriate. This is particularly important if the employee’s needs or job requirements change.
- Ensure that the process remains collaborative. Avoid requesting updated information without also providing the employee the opportunity to speak to changes in their circumstances/needs.
Don’ts for Employers:
1. Don’t expect the employee to use formal language when requesting an accommodation:
- A formal accommodation request in writing is not always required. The duty may be triggered when the employer knows or ought to know of the employee’s need.
- Don’t dismiss a verbal or informal request.
2. Don’t skip steps or dismiss the process:
- Failing to gather the proper information, consider alternatives or ask questions can result in a breach of the procedural duty to accommodate, even if accommodations are offered. E.g. ignoring functional limitations reports or refusing to meet with an employee.
3. Don’t treat the employee’s accommodation preference as the only option:
- While employee input is important to the process, employers are entitled to provide reasonable accommodations that meet the employee’s functional needs. Employees may be required to compromise.
- If an employer provides a reasonable accommodation option and it is rejected by the employee without good reason, the employer’s duty may nonetheless be discharged.
4. Don’t claim undue hardship without proper evidence or considering alternatives:
- Undue hardship is a high threshold to meet. Operational inconvenience or simply citing cost is not enough. Employers have to show evidence of a real and substantial burden to meet this threshold.
For employers, understanding their obligations under the duty to accommodate is paramount to effective operation. The duty can feel complex, but it is ultimately about fairness, flexibility and collaboration. Employers who respond to requests in a timely manner, and engage in a transparent, collaborative, and documented process, are more likely than not to meet their legal obligations and foster a healthy work environment.
For more information, please contact Turnpenney Milne LLP.
Written by: Lindy Herrington