Worker Accommodation and the Human Rights Code

Under Ontario’s Human Rights Code, employers in Ontario are expected to accommodate their workers to the point of “undue hardship”. This is commonly known as the “duty to accommodate”.

Reasonable accommodation varies depending on the protected human rights grounds being addressed, such as disability, sex, age, creed and family status. An employer must guarantee its employees are accommodated adequately given their specific circumstances. The purpose of this provision is to meaningfully incorporate and respect a diverse workforce. As a result, the different types of possible accommodations are as diverse as an employer’s staff.

Normally, most workplace accommodations fall into one of four main categories.

The first category is the modification of the physical work environment. Often, employees with disabilities who need accommodation will require various adjustments to their workspace to make it more accessible. Part of ensuring an accommodating workspace may involve providing wheelchair accessibility, ergonomic seating, or text-to-speech software, depending on the employee’s disability and their limitations.

The second is temporary work assignments or temporary accommodation. This can take the form of lighter duties, temporary transfer to a less strenuous role, and the adjustment or reduction of hours and availability until either the employee has recovered, or more permanent solutions are available to accommodate their needs. An employee can request for temporary accommodation for many reasons, for example: a man working at a button factory breaks his finger. With the appropriate health documentation, the employee might request a less physical role for the period suggested by their medical practitioner. Once the employee has fully recovered, they would then expect to return to their original duties.

Thirdly, leaves of absence may be required and accommodated, with the understanding the employee will be able to resume their position or an equivalent role upon their return. Typically, this accommodation would be facilitated in the case of medical leave for a disability-related disorder or illness, family emergency, maternity/parental leave, or domestic violence/sexual assault leave.

Lastly, there are term modifications, which are adjustments to various employment conditions or policies to accommodate for various needs, such as disability, religion, or family status. This can be as simple as providing time and space for your religious employees to perform their daily prayers, adjustments to the employee dress code to permit for religious dress requirements or permitting an employee with autism to use noise-cancelling headphones while at work to mitigate auditory sensitivities.

While the right to accommodation goes a long way, it is limited by the notion of undue hardship. This means that if granting the requested accommodation would cause the employer undue hardship, the accommodation can be rightfully be denied. Undue hardship is evaluated on a contextual basis and any relevant factors may be assessed to measure whether the burden of accommodation is greater than the reasonable ability of an employer to accommodate.

Certain accommodations may involve a degree of risk, and the level and extent of that risk is a determining factor as to how reasonable that accommodation may be. In cases where the risk is transferred to other employees or customers, the degree of acceptable risk is greatly decreased, and the accommodation may rightfully be denied on that basis.

No employee should be at a disadvantage at any time during their employment and reasonable accommodation will contribute to upholding dignity and inclusion in the workforce. Accommodating employees and promoting a healthy and discrimination-free environment is an essential part of an employer’s duties.

Employees of course, should remember that they also have a duty to participate in the accommodation process and that an employer may run into difficulty accommodating an employee if the employee does not express their needs or limitations, and support these with the necessary documentation.

Whether you are an employee requesting accommodation or an employer seeking to grant accommodation, Achkar Law would be happy to help you further navigate the topic.  Contact us at (800)771-7882, or email [email protected] and we would be happy to assist.

 

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call (800)771-7882, or email [email protected].