Does my employer have to accommodate my disability?achkarlaw-admin
The duty to accommodate is prescribed by Ontario’s Human Rights Code (“Code”). The Code protects individuals from being discriminated against based upon protected grounds. The guiding principle of the Code is that, regardless of disabilities, all individuals should have equal access, benefits and opportunities in certain social areas.
Employment is one social area that is protected from discrimination. The Code prohibits employers from engaging in discriminatory practices in the workplace. It also grants a worker with a disability the right to be accommodated in the workplace. In this manner, the Code grants both a negative and a positive right. However, the duty to accommodate is not an absolute right.
What is the duty to accommodate?
The duty to accommodate is an obligation that employers have in order to ensure that workers with disabilities are not discriminated against.
To discharge this duty an employer may need to modify their organization’s:
- Physical features
- Communication practices
- Performance goals
- Workplace or employment requirements
The scope of this duty is not limited to the actual accommodation being sought but also the actual treatment of the employee thereafter. If accommodation is followed by behavior or conduct that constitutes workplace bullying or harassment, then the Human Rights Tribunal of Ontario may find the employer liable for damages. The duty to accommodate not only ensures the accommodation of a disability, but also the protection of those seeking that accommodation.
Are there any limits to the duty to accommodate?
An employer has a duty to accommodate an employee’s disability up to the point of undue hardship. The burden of proving that an accommodation would cause undue hardship is placed on the employer. A mere inconvenience on the employer is insufficient. A tribunal will consider a range of factors in their assessment of whether an accommodation would cause undue hardship, including the following:
- The cost incurred by the employer
- The availability of outside sources of funding for the accommodation
- Any health and safety requirements of the particular workplace
While there may be a high threshold in proving undue hardship, if an employer can prove that they cannot accommodate because of what the law calls a “bona fide occupational requirement” (“BFOR”) of the employee’s position, then a failure to accommodate an employee’s disability may be justified.
What is a bona fide occupational requirement?
A BFOR is best understood as a requirement that is truly necessary to safely perform a job. To illustrate with an extreme example, an employer looking to hire an operator of heavy machinery may be justified in excluding an individual who is legally blind. A vision standard may be a BFOR if no accommodations would allow for someone who is visually impaired to perform this job safely.
By contrast, if providing accommodation is merely an inconvenience, then a failure to accommodate a disability will not be justified.
How can I get my employer to accommodate my disability?
Inherent in the duty to accommodate is a duty to inquire about an employee’s disability. When reasonable steps are not taken to inquire about an employee’s disability, a human rights tribunal may find that the employer did not discharge their duty to accommodate.
Sometimes an employee’s disability may not be easily identifiable. While an employer will still have a duty to accommodate, they cannot accommodate a disability they are unaware of. For example, an employee with a mental health disability may be harder to recognize than an employee who needs accommodations for a physical disability.
Therefore, an important first step in seeking workplace accommodation is to disclose any disabilities that may impact one’s workplace performance. Putting an employer on the notice may help to mitigate against any subsequent claims of ignorance.
While it may not be necessary for every situation, providing supporting documents to an employer may be beneficial for an employee seeking accommodation. Supporting documentation from a healthcare professional not only places an employer on notice but may also help disclose the extent of the necessary accommodations. At the same time, be very careful about sharing personal health information except in circumstances in which you make it clear it is to be confidential and that you expect the employer to treat it as such.
If you have any questions about discrimination in the workplace or the duty to accommodate, our team of experienced employment and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.