What is the duty to accommodate?Team
In Ontario, the workplace is a protected social location, which means it’s a place where Ontario’s protected human rights grounds must be respected.
Key among the human rights duties of employers is the duty to accommodate disability to the point of undue hardship. That is, employees may not be treated adversely relative to other employees because of their disability. Workplace rules that apply to all employees may in some cases adversely impact disabled employees. The duty to accommodate says employers have to adjust or adapt rules or procedures where possible to assist disabled employees to be functional.
Certainly, the duty to accommodate has reasonable limits where the employer can claim that they are not able to meet that employee’s need, if there is undue hardship put on them. With the exception of scenarios of undue hardship, the employer will be expected to collaborate with their employee to accommodate their needs.
This article will give you a better understanding of what the duty to accommodate is and why it is important in the workplace.
What does the Ontario Human Rights Code say?
Under the Ontario Human Rights Code, protected grounds means grounds (reasons) for differential treatment that are prohibited by law. Differential or adverse treatment based on a protected ground is prima facie discrimination. The protected grounds include:
- Ancestry, colour, race
- Ethnic origin
- Place of origin
- Family status
- Marital status (including single status)
- Gender identity, gender expression
- Receipt of public assistance (in housing only)
- Record of offenses (in employment only)
- Sex (including pregnancy and breastfeeding)
- Sexual orientation.
These protected grounds apply only to the protected social areas, i.e. places or environments (including virtual) related to employment and to services ordinarily accessible to the public. The protected social areas in Ontario include:
- Accommodation (housing)
- Goods, services, and facilities
- Membership in unions, trade, or professional associations.
If a person is treated differently based on a protected ground in a protected social area, they may well have a claim of discrimination and can make an application to the Human Rights Tribunal of Ontario (HRTO).
What is the duty to accommodate?
The duty to accommodate derives from the protected ground of disability, and the principle that rules of general application can have the effect of discriminating against someone on the basis of illness or disability, even if there is no intent to discriminate. Out of that principle comes the duty to accommodate, or in other words the duty to create special rules and procedures to allow a disabled employees to perform to the best of their abilities on an equal footing with abled employees.
The duty to accommodate can take many forms, and in law has to be an individualized assessment, looking at each individual employee’s needs and challenges when fashioning an accommodation. Frequent examples of accommodation can include needing to give an employee the option to work from home so that they can look after their children, or providing an employee with vision impairment a special screen so they can see better.
Employees may also request certain things as a request for accommodation. Some might be immediately obvious, like providing an accessible entrance for an employee in a wheelchair, while others might need to be specifically requested by the employee, such as an accommodation to their schedule.
Employers should pay attention to behavior changes from their employees and other indicators, such as absenteeism, and interpersonal or poor work performance, to see if there is a need to accommodate them.
The duty to accommodate involves providing the requested change for the employee or working with them to find a collaborative solution that works for your workplace.
Again, though, there are limits to how far an employer must go – if it can show that any particular proposed accommodation would cause it undue hardship, it has satisfied the duty to accommodate.
What is undue hardship?
Undue hardship is obviously an amorphous concept. All employers will experience some added cost or inconvenience from accommodations, but when is the line crossed to where they become undue burdens? Common instances when accommodation is not possible to include cost, that it could create health and safety risks, that it would create an unnecessary job, or create a redundant position. An example of undue hardship might be if a limo driver loses their vision and is unable to drive limos any longer. If their employer has looked for another position within the company, but is unable to accommodate them without either firing another employee or creating a redundant position for them, then this would be undue hardship, as it would be too expensive to meet the employee’s needs.
However, there is no set formula to determine when undue hardship applies, so it is instead looked at on a case-by-case basis. Employers should work hard and put in their best effort to accommodate employee needs before claiming undue hardship. Always document the efforts and steps that you take to meet the request, and get advice from lawyers and human resource specialists where needed.
What happens if I do not accommodate an employee?
If you do not accommodate your employee and there was no undue hardship, you may be found to be discriminating against them based on a protected ground. That employee can hire a lawyer and file a human rights complaint with the HRTO, which could cost you money for legal fees and damages in the long run.
If you are able to accommodate an employee’s request, it is a better idea for you to do it in the long run, especially as it will make your workplace look more desirable to another potential talent.
The duty to accommodate is a duty that employers have to make sure that they are taking every effort to reduce discrimination against their employees. Employers need to pay attention to Ontario’s protected grounds and keep an eye out for employees who need accommodation. They also need to be willing to meet employee requests, unless the request would create an undue hardship on the employer.
If an employer does not accommodate their employee, they could face a legal battle if that employee files a human rights complaint with the HRTO.
If you are an employer or an employee with questions about human rights or the duty to accommodate, our team of qualified workplace lawyers 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.
If you are a small or medium-sized company looking for full-service support with a same-day response, visit our Chief Legal Officer Program page for our strategic solutions.