The duty to accommodate applies to all grounds of discrimination covered under human rights legislation and the Canadian Charter of Rights and Freedoms. Each province in Canada has provisions for accommodating disabilities. In the United States, the Americans with Disabilities Act, also provides accommodation in the working environment to enable an individual with a disability to have an equal opportunity not only to get a job, but successfully perform their job tasks to the same extent as people without disabilities.
Depending in where you live, it will be important to review your jurisdictional legislation to see how the duty to accommodate applies to your workplace. The information contained below focuses on Ontario legislation concerning the Ontario Human Rights Code, but is meant to be broad in its application. More information can be found at the link below.
Broad definition of disability
There is a long list of conditions affecting a worker’s ability to work that can be considered a disability for human rights purposes including:
Physical disabilities such as hearing or visual impairments, heart conditions, soft tissue injuries, or colour blindness; mental disabilities such as depression, post-traumatic stress disorder, alcoholism, and addictions (which are considered both physical and mental disabilities); chemical and environmental sensitivities; episodic, recurrent, or chronic disabilities such as HIV/AIDs, diabetes, lupus, and certain cancers; and learning disabilities such as dyslexia and memory retention conditions.
Medical information (not the actual diagnosis) is usually required by the employer to understand the extent of the limitations requiring accommodation. This can include “no lifting over ten pounds” for 6-8 weeks. accommodations can be short term – or long term. Long term accommodations can lead to a permanent accommodation in the workplace. The employer must thoroughly consider whether the worker’s working terms and conditions could be modified in a way that would keep the worker employed, without causing undue hardship to the employer or other employees.
What is Undue Hardship?
The “undue hardship” requirement creates the limit to which the employer’s duty to accommodate extends: employers’ legal duty to accommodate an employee’s disability continues to the point of “undue hardship”. This means employers are required to suffer some hardship – just not an “undue” amount. The bar is high, and there are many factors relevant to quantifying the level of hardship, including: financial cost relative to the employer’s size; disruption of a collective agreement; problems of morale of other employees; the interchangeability of the workforce; the adaptability of facilities; and the magnitude of any safety risks and the identity of those who bear them.
The Supreme Court of Canada has indicated that factors to be considered in determining the point of undue hardship include:
Safety at work;
Disruption of the collective agreement;
Impact on the rights of other workers;
Interchangeability of worker positions or workplace facilities;
The size of the operation.
The two most important factors are financial costs and safety risks.
Financial costs must be directly related to the accommodation. They must be proven and not merely speculative, and they must be substantial to the point that the viability of the operation is impaired by the cost.
Safety concerns must always be taken seriously. Employers sometimes try to claim they have safety concerns as an excuse to avoid their duty to accommodate. In determining the point of undue hardship, safety concerns must be real and reasonable, not based on speculation. It can include the safety of the employee seeking accommodation, coworkers, clients, customers, patients, or others.
The employer’s duty to inquire
Once an employer has been made aware (either by the union or the employee) of a disability requiring accommodation, they must begin the process of finding a reasonable accommodation. This process begins by making meaningful inquiries into the nature and extent of the employee’s disability-related needs.
In some circumstances, the employer will be expected to inquire about the possible existence of a disability requiring accommodation. For example, in the case of a worker exhibiting unusual workplace behavior, or who is excessively absent, the employer would be expected to inquire about the possibility of a disability requiring accommodation.
The accommodation-seeker’s responsibilities
The worker seeking an accommodation has a duty to disclose the general nature of their disability and any restrictions to the employer. This information makes it possible for the employer to properly accommodate the worker. The worker must provide sufficient information concerning limitations, however revealing an actual diagnosis is not always necessary and should be avoided wherever possible.
The worker should cooperate with the employer and the union throughout the accommodation process by communicating with them, and by accepting a reasonable accommodation.
The union must be actively involved in the process of accommodation. The union can be particularly useful in helping to determine appropriate accommodation alternatives, and can also represent the worker’s interest in meetings with the employer. The union also has to protect the interests of other members, ensuring an accommodation doesn’t create undue hardship for other members. In particular cases, the union may need to be flexible with the application of its own collective agreement, which may include waiving certain provisions, like a posting requirement or seniority provision.
Examples of workplace accommodations
Many workplaces are not designed with people in mind, whether or not they have a disability. Some accommodations are simple and benefit the entire workforce. Such changes might include:
- Building access ramps and automatic doors;
- Adding extra lighting;
- Lowering shelves and equipment in a way it makes them accessible to the mobility-impaired;
- Instituting “no scent” policies and taking other steps to ensure that chemical sensitivities are not triggered by workplace hazards;
- Adding flashing lights to an alarm system to ensure that hearing-impaired workers understand the alarm.
There are many other forms of accommodation, depending on the particular needs of the accommodation-seeker. Accommodation may involve:
- Tolerating otherwise excessive absenteeism related to the disability;
- Modifying or bundling specific duties so that the employee can continue participation in the workplace;
- Changing existing schedules or the numbers of hours worked;
- Allowing a reasonable time for the accommodated worker to have a trial period in a new position;
- Allowing seniority to accrue during disability-related absenteeism or reduced hours;
- Tolerating a sub-par level of productivity;
- Transferring the accommodation-seeker to a less stressful worksite or one which lessens the impact of the work commute on her or his disability;
- In certain circumstances, fashioning an entire program of working terms and conditions that allows the worker to remain in productive employment.
There are as many accommodations as there are individuals requiring accommodation. The extent of the duty is that the employer must accommodate to the point of undue hardship.Ultimately, however, the employment contract is an exchange of work for pay. Every employee – even one with a mental disability – must be fit to work and able to adequately perform tasks in a productive manner. If an employee isn’t fit to work in any position, the employer should place the employee on sick leave or a leave of absence. In addition, an employee with a mental disability isn’t entitled to any different treatment, or any greater level of job security, when the mental disability is unrelated to whether she can meet the job’s skill and performance requirements. Thus, an accommodated employee may be subjected to discipline for poor job performance where her poor performance in the position is unrelated to her disability.
What type of medical information is an employer permitted to request?
Personal medical information is inherently private, but this privacy right isn’t absolute. The employer’s duty to accommodate obligates it to carefully assess the employee’s particular circumstances. This means the employer (and all those involved in the accommodation process) must have the relevant facts about the disability. Similarly, the employee has an obligation to participate in the accommodation; this includes providing the employer with all the information relevant to both establishing their disability and to meeting their accommodation needs. If the employer asks the employee to provide detailed information about her medical condition so it can devise an appropriate accommodation then, assuming the information is reasonable and necessary to do so, the employee must provide it.
Generally, the employer can request, and the employee should provide, the following medical information so the employer can satisfy its duty to accommodate – provided the employer’s request is limited to that which is needed:
- The general nature of the illness and how it manifests as a disability.
- Whether the disability is permanent or temporary and the anticipated timeframe for improvement.
- The restrictions or limitations that flow from the disability, particularly as they relate to the employee’s duties.
- The basis for the medical conclusion (though not test results or clinical notes).
- The treatment and medications (side effects) that may impact the employee’s ability to perform her job.
Can an employer ask for a second medical opinion?
Am employer can request a second medical opinion or ask the employee to produce additional medical information to support the existence of a disability or an accommodation request – but only if there are reasonable grounds to do so. There might also be circumstances in which the employer is entitled to require an employee to undergo an independent medical examination (IME) by a physician other than the employee’s own physician to properly ascertain an employee’s ability to work. That doesn’t mean, however, that employees must always submit to an IME when requested; the request must still be reasonable and justifiable based on the facts of any given case, such as where the medical information the employee’s physician provides is inadequate and unreliable.