The Ontario Human Rights Code (“Code“) requires every employer and union to reasonably accommodate employees who fall under the protected grounds of discrimination. An employee’s request for an accommodation triggers the employer’s duty to provide reasonable accommodation. This article below will discuss the procedure for requesting accommodation at work and the employer’s obligation to provide reasonable accommodation. Further, it will explain how an employment and human rights lawyer can help with your accommodation request.
Under the Code, every employer has a duty to accommodate. This duty requires an employer to modify or adjust an employee’s duties or conditions of work according to their individual needs. They must ensure that their workplace is inclusive and enables the workers to participate fully in the workforce.
There are many ways an employer can accommodate an employee, including, but not limited to:
● Allowing employees to take certain days off for religious observance;
● Modifying work schedules to adjust employee’s caregiving responsibilities;
● Building a wheelchair access ramp;
● Having flexible work hours; and
● Allow employees to respond to family emergencies.
An employer should not wait for formal requests when the employee’s accommodation needs are apparent. Employers should offer accommodations to employees who are clearly unwell or have any disability. At the same time, an employee should inform their employer if they require accommodations.
How can an Employee make a Request for Accommodation?
Employees have a duty to participate in the accommodation process. This duty includes providing enough information to allow their employers to assess the possible accommodations available.
Many companies have a workplace accommodation policy specifying the person or department handling the accommodation requests. If the policy contains such a provision, the employee should submit their request to the officer mentioned therein. Otherwise, the employee may submit the accommodation request to their manager or supervisor.
An employee should consider making accommodation requests in writing. When an employee submits a formal written accommodation request, they leave a paper trail which the employer must address. In their written accommodation request, the employee may include:
● The provision of the Code on which the employee is requesting accommodation;
● Reason for requesting accommodation;
● Information to confirm the existence of a need for accommodation;
● Suggestions of possible accommodation measures.
Additionally, the employee may attach third-party documents to support their accommodation requests. These documents include:
● Medical notes from a physician;
● Functional abilities form prepared with a physician’s input;
● Letter from religious official regarding the religious observance;
● Written evidence from third parties regarding any childcare or family status needs.
While submitting the additional documents mentioned above is not compulsory, doing so may assist the employer in assessing the worker’s accommodation needs.
For instance, if an employee cannot perform certain labour-intensive tasks due to an injury, the functional abilities form may help the employer explore suitable tasks for them. However, an employer may not force the employee to disclose their confidential medical information or diagnosis.
An employer must consider employees’ requests for accommodations and provide reasonable accommodation.
What is the Employer’s Duty to Provide Reasonable Accommodation?
‘Reasonable accommodation’ requires an employer to guarantee adequate accommodation to employees after considering their specific circumstances. The employer should develop and implement accommodations to maximize an employee’s ability to integrate and participate in the workforce.
It’s important to note that reasonable accommodation varies depending upon the protected human rights grounds being addressed, such as age, disability, sex, creed, and family status.
Employers have a duty to provide reasonable accommodation; but not perfect accommodation. An employer’s duty to accommodate is limited to the point of ‘undue hardship’. The Code mentions three considerations to determine whether an accommodation would cause undue hardship:
● Cost – If the cost of accommodation is so high that it would alter the nature of employment or substantially impact its viability, it would amount to undue hardship.
● Any outside source of funding – An employer must try to take advantage of any government funding or other program to help with the accommodation costs.
● Health and Safety Risks – If the employer can show that accommodating the employee would cause health and safety risks, it could be considered an undue hardship.
The threshold for proving undue accommodation is quite high. An employer may not be able to claim undue hardship if accommodating an employee is just expensive or inconvenient. However, they might be able to raise a defence of undue hardship based on the exponential costs of accommodation.
How an Employment and Human Rights Lawyer can help
If your employer rejects your accommodation request or fails to offer sufficient accommodations, then an employment and human rights lawyer can help. They can use their knowledge and expertise to help determine whether the employer failed in their duty to provide reasonable accommodation.
Even if the employer rejects your accommodation request citing undue hardship, it may not be prudent to accept their assessment at face value. The employer must support their claim for undue hardship with objective evidence. Further, the employment and human rights lawyer can assess your unique facts, review the accommodation request and the reasons for its rejection, and advise on your best next steps.
An employment and human rights lawyer can send your employer a demand letter asking for accommodations. A demand letter briefly mentions the facts, states your accommodation needs and proposes an offer to settle the matter outside of court.
In the best-case scenario, your employer may agree with your demands, and you may avoid the expensive and exhausting litigation process. If the employer fails to offer reasonable accommodation or does not reply to the demand letter, you may have no choice but to sue them.
An employment and human rights lawyer is a trained legal expert with experience in navigating the legal system. They can use their knowledge of the law and the legal system to guide you through the legal process and help you achieve your desired outcome.
When an employee makes an accommodation request, the employer has a duty to offer them reasonable accommodation. The employer must adjust its rules, policies, and practices to accommodate the employee to the point of undue hardship.
While rejecting an accommodation request based on undue hardship, it is not enough for the employer to suggest that the cost or risk involved in accommodation is too high. Their assessment of undue hardship should be based on facts, figures, and scientific data.
You may file a human rights claim against your employer for failure to provide adequate accommodations. An employment and human rights lawyer has the knowledge and expertise to help you bring a human rights claim against your employer. They can use their experience and skills to help you navigate the legal system and maximize your chances of success.
If you are an employer or an employee with questions about accommodation requests or the duty to accommodate, our team of qualified employment and human rights lawyers can help. Contact us today at +1 (800) 771-7882 or email us at [email protected], and let us help you find the solutions you need to move forward.
For small or medium-sized companies looking for full-service support with a same-day response, visit our Chief Legal Officer Program page for our strategic solutions.
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