What happens if a workplace accommodation is insufficient for an employee’s disability?Team
Workplace accommodation is essential to the ability of many people with disabilities to be able to participate in the workforce. Employers and unions in Canada are required to make every reasonable effort, short of undue hardship, to accommodate an employee who falls under a protected ground of discrimination, particularly the ground of disability.
What is the duty to accommodate in your workplace?
Employers must recognize that people have different needs requiring different solutions to gain equal access and treatment so they can perform their job at their workplace. An example of accommodation would be having wheelchair-accessible ramps. Accommodation is not the same for every employee, as each case is assessed individually, and the nature of the accommodation will vary depending on the needs of the employee.
It is important to keep in mind that accommodation must be a reasonable accommodation and not perfect accommodation. The duty to accommodate is limited to where it would cause undue hardship to the employer.
What is undue hardship?
When assessing if accommodation would cause undue hardship the following is considered:
- outside sources of funding, if any
- health and safety requirements, if any.
The onus of the proof that the accommodation will cause undue hardship is on the employer, as they are required to provide evidence that must be objective, real, direct, and, in the case of cost, quantifiable.
To accommodate an employee who has disabilities, the employer must separate the essential job duties from the non-essential job duties, as the non-essential job duties could be reassigned to another co-worker to the point where it does not cause undue hardship. In the event that the employee is unable to perform the essential duties of the job, and the employer is unable to find other ways for the employee to perform these duties, the employer may accommodate the employee by adjusting the performance standards, as long as, once again it does not result in an undue hardship.
If the employee is unable to perform the essential job duties, and the employer is unable to adjust the performance standards without undue hardship, the employer may be able to find alternative work for the employee. Alternative work means different work, which does not necessarily need to involve the same skills, compensation, and responsibilities as the existing position. In some cases, accommodation in a new position may be considered appropriate, as long as the employer has shown the steps they have taken and the concrete reasons why accommodation is not possible in the previous position.
Alternative work can be either temporary or permanent:
Temporary alternative work: This option may be appropriate in circumstances where an employee is just returning to work after an extended absence due to disability or when a disability has left an employee temporarily unable to perform the pre-disability job. In other words, a temporary alternative work option is suitable when the nature of the employee’s disability and the limitations are temporary.
Permanent alternative work: In situations where accommodation in the current job causes undue hardship, accommodating the employee in a vacant position would be considered reasonable. When the reassignment to the new position occurs, the employee must be qualified for the job; ideally, the vacant position must be equivalent to the previous position the employee had.
It is important to keep in mind that for an employer to propose alternative work as an accommodation for an employee with disabilities they have to prove that the accommodation needs for the employee would cause undue hardship. Employers cannot automatically reassign the employee to a lower position, which is why employees must also keep in mind it is important to collaborate with the employer in order for them to meet their request for accommodation.
Employers have an obligation to adjust rules, policies and or practices to the point of undue hardship in order to accommodate an employee so they can participate fully in the workplace. Sometimes it is important to treat a person differently in order to prevent or reduce discrimination. There are many ways an employer can accommodate an employee such as:
- Building wheelchair ramps
- Modified hours or days or reduced work hours
- Special chair or back support
- Working from home
If the accommodations your employer offers you are not sufficient, let them know so they can see if they can accommodate you in any other way that does not cause them undue hardship. If your employer is unable to provide any other accommodation, they must provide reasoning as to why the accommodation causes them undue hardship. This must be supported with an objective and real evidence. Employers can propose alternative work as another means of accommodation, which will allow the employee to continue working despite not being in the position they had before.
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.