My Accommodation Request Has Been Denied? Now What?!achkarlaw-admin
Employees may encounter life circumstances where they need accommodation for issues such as illness, family emergency or religious observance. Whether an employee requests an accommodation in the form of an altered work environment or time off to manage personal circumstances, some employers may decline to accommodate or otherwise work with a given employee in arriving at a solution. If an employee’s accommodation request has been denied, they often feel pressure to work without their accommodation to their detriment. All employees should know they have options to get the changes they need so they can continue working.
What Am I Entitled To If My Accommodation Request Has Been Denied By My Employer?
Under the Ontario Human Rights Code, all provincially regulated employees in Ontario are entitled to accommodation for human rights code-related grounds such as race, gender identity, gender expression, disability, age and family status. If an employee needs a change to their work under one of these grounds or similar, they are entitled to accommodation from their employer to the point of undue hardship.
Provincially regulated industries include most jobs in Ontario. However, some employers are governed by Federal laws and would therefore be subject to the Canadian Human Rights Act. These industries include banking, air transportation, Federal Crown Corporations and interprovincial road and rail transportation. Federally regulated employees are entitled to similar protections as the Ontario Human Rights Code, however, if an employee needs to take their human rights issue to a tribunal, they should go to the Canadian Human Rights Commission instead of the Ontario Human Rights Tribunal.
Some employees may also need accommodations due to workplace injuries under the Ontario Workplace Safety Insurance Act. These employees would have applied to the Workplace Safety Insurance Board (WSIB) for compensation or benefits due to their workplace injury.
When these employees recover enough to return to work, they are also entitled to accommodations to the point of undue hardship with their employer. These employees also have the ability to address any refusals to accommodate with the WSIB.
How Does Undue Hardship Affect Me?
Under both federal and provincial human rights laws, employers aren’t required to provide an employee with accommodation if doing so would cause undue hardship to the employer. When courts evaluate undue hardship, they look at different factors including cost, safety, the employee’s position, and impact on the workplace. To qualify as undue hardship, accommodation needs to alter the workplace in a fundamental way but doesn’t need to be impossible to meet the threshold of undue hardship on the Employer.
What Should I Do When My Accommodation Request Has Been Denied?
All employees have the duty to participate in the accommodation process. This includes providing enough information to allow their employers to assess the accommodations that are possible. When an employer rejects a reasonable accommodation request, it is helpful to provide further documents from impartial third parties to support your accommodation needs. Documents you might consider include:
- Medical notes from your physician
- Functional abilities forms, with input from your physician
- Letters from your religious official regarding any religious observance
- Written evidence from third parties concerning any family status or childcare needs
Overall, the accommodation process requires some back and forth between the employer and employee where both parties need to give reasonable options about what they can and can’t do to ensure that an employee has their human rights respected without a fundamental impact on their workplace. Employees should make copies of the documents they provide to their employer and document their employer’s response to legitimate requests.
If supporting documents still don’t get the accommodations necessary for an employee, it is often best to involve competent legal counsel to advocate on your behalf. The range of resolutions can include application to the Ontario Human Rights Tribunal or Canadian Human Rights Commission for damages or for an appropriate accommodation. Employees should be prepared to provide the supporting documents to their legal representative to make the strongest case possible. Often employers will be agreeable to a practical resolution rather than litigating through tribunal processes.
If you are an employee experiencing discrimination in your workplace or an accommodation request is denied by you employer, or an employer who is facing a human rights claim, our team of experienced employment 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 would be happy to assist.
If you are a small or medium-sized company looking for full-service support with a same-day response, visit our CLO Program page for our strategic solutions.
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].