A Top Employer Mistake: Failing to Meet the Duty to Accommodate

shutterstock_115407829Managing employees can be a complex and difficult task. With the variety of employee entitlements and employer duties that are granted under numerous pieces of legislation, as well as the common law, it goes without saying that employers will sometimes make mistakes. One of the major areas where employers get it wrong is in their duty to accommodate under the Human Rights Code of Ontario (the “Code”). The duty to accommodate means that you may have to alter an employee’s duties or job requirements to assist him or her to overcome any limitations they may have to enable them to perform the essential duties of their job. 

The repercussions for breaching the Code can be significant for employers; from general damages in the tens of thousands, to back pay, pay in lieu of notice that exceeds the common law limitations, as well as reinstatement or other orders such as organizations-wide training obligations. To put it mildly, it can be costly, embarrassing and a PR nightmare.
On the upside, meeting the duty to accommodate is usually not that difficult and you can be rewarded with a productive and motivated workforce.

The Duty to Accommodate

The duty to accommodate applies to the special needs of every group protected by the Code and accommodation is considered integral to a person’s right of equal treatment. It most commonly arises in respect to the following areas:

  • Creed (religion)
  • Sex (including pregnancy and breastfeeding)
  • Gender identity and gender expression
  • Age
  • Family status
  • Disability (both physical and mental)

Procedural and Substantive Duties

Employers have two duties in the accommodation process, a procedural duty and a substantive duty.

(a) The Procedural Duty

The procedural duty requires you to make enquiries to determine whether and what accommodation is required in order for the employee to participate fully in the workplace. Failing to meet the procedural duty to accommodate is in itself a form of discrimination since it prevents an appropriate search
for accommodation.

To provide some examples, the procedural duty to accommodate could involve obtaining all relevant information in the
following contexts:

  • Disability: obtaining the current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work.
  • Family status: obtaining information about specific child or parent care issues and the steps the employee has taken to solve these issues.
  • Religion: obtaining information about the employee’s religious-based needs and obligations.

Failing to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken to assist an employee, constitutes a failure to satisfy the procedural duty to accommodate. Employers sometimes run into issues when they merely suspect an employee has a Code-related need, but nothing has been said about it. Your procedural obligation arises when it appears that an employee has an accommodation need, whether or not the employee directly requests accommodation.

(b) The Substantive Duty

The substantive duty requires you to make the necessary modifications to the employee’s duties or terms of employment that will permit the employee to participate fully in the workplace. The modifications must be made unless the employer will face undue hardship.

In Baber v. York Region District School Board [2011 HRTO 213.], Ms. Baber had various physical and mental health problems. During discussions regarding accommodating her disabilities, Ms. Baber’s physician provided a note stating: “due to increasing health issues please allow for this employee to be a teacher librarian.” The school board refused to transfer Ms. Baber and gave her three options:

(i) Have a nurse with the school board’s disability management program obtain clarification from Ms. Baber’s physician;
(ii) Attend an independent medical examination; or
(iii) Apply for long-term disability benefits.

Ms. Baber refused all three options and also refused to attend work. As a result, the school board terminated her employment.

The tribunal held that the school board fulfilled both the procedural and substantive requirements in three ways: first, it had taken measures to inquire whether or not Ms. Baber had a disability. Second, it asked for medical documentation. Third, it did not have a duty to accommodate because there was not medical evidence to support Ms. Baber’s accommodation request.

Principles of Accommodation

Three principles are important to consider in addressing the duty to accommodate:

Dignity: Employers must accommodate employees in a way that respects their dignity, privacy, comfort and autonomy.

Individualization: Each employee’s needs are unique and employers should avoid a “one size fits all” approach to accommodation. Instead, consider the particular needs of each employee requesting accommodation.

Inclusion: Workplace rules and standards should contemplate from the outset that there will be employees with a wide range of abilities and circumstances. The goal is to enable all employees to equally participate in the workplace in a meaningful manner.

Roles and Responsibilities

All parties, employee, employers and unions (if applicable), have a shared responsibility to facilitate accommodation.

Employees

An employee seeking accommodation has a duty to:

  • Advise of the need for accommodation (if it is disability related, you are not generally entitled to know the nature of the disability)
  • Make his or her needs known to the best of his or her ability, preferably in writing
  • Answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, if applicable
  • Participate in discussions regarding possible accommodation solutions
  • Co-operate with any experts whose assistance is required to manage the accommodation process
  • Meet agreed-upon performance and job standards once accommodation is provided
  • Work with you on an ongoing basis to manage the accommodation process
  • Discuss his or her disability only with persons who need to know. This may include his or her supervisor, a union representative or human rights staff.

An employee “cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.” [Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, par. 51.]

Employer

Your procedural and substantive duties include:

  • Accepting a request for accommodation in good faith
  • Determining whether there is a need that must be accommodated
  • Ascertaining how to accommodate, including canvassing various options and alternatives
  • Assessing ability to work
  • Treating the employee with respect and dignity
  • Asking for medical information to substantiate absences when required
  • Providing equipment and tools to facilitate accommodation
  • Changing working hours or work location
  • Distributing duties amongst other employees
  • Increasing break periods
  • Modifying a position
  • Reassigning to another position
  • Bundling duties (if no other alternative)

Ultimately the method of accommodation is your call. If there is more than one form of reasonable accommodation, then you are allowed to choose the one that best meets the
organizational objectives.

Unions

Unions and professional associations are required to:

  • Take an active role as partners in the accommodation process
  • Share joint responsibility with the employer to facilitate accommodation
  • Support accommodation measures irrespective of collective agreements, unless to do so would create undue hardship

Physician

It is not uncommon for an employee to produce a doctor’s note indicating that he or she is experiencing workplace stress or harassment and which requests a transfer to a different job or different supervisor. But does the physician get to diagnose the workplace? Can he or she dictate what form of accommodation is required? The simple answer is no.

The physician’s role in the accommodation process is to provide a prognosis with respect to the employee’s disability-related limitations and needs, but not to diagnose the workplace itself.

A physician is obviously not in a position to determine whether an employee is being harassed or subjected to undue work-related stress. Nor can the physician determine what specific positions would best suit the employee. That responsibility belongs to you, as you are in the best position to evaluate what jobs and accommodation measures meet the needs identified by the physician.

The Undue Hardship Defence

The employer’s defence to a claim of failure to accommodate is that accommodating the employee would create an undue hardship on the employer. The Code prescribes three factors to consider when assessing whether an accommodation would cause undue hardship. These are:

Cost: The cost must be so substantial that it would alter the essential nature of the organization or affect its viability.

Outside Sources of Funding: If outside sources of funding are available, you are less likely to be able to prove undue hardship. Such funding may include:

  • Funds that may be available to the employee in relation to his or her disability
  • Funds available to employers to offset the cost of accommodation
  • Funding programs established to improve accessibility for persons with disabilities as a corporate or organizational responsibility Health and Safety Requirements: Health and safety risks may constitute undue hardship if this outweighs the benefits of enhancing equality for persons with disabilities.

If modifying or waiving a health and safety requirement could place the employee at risk, employers are obliged to explain that risk to him or her. You will need to balance the need to allow persons with disabilities to assume risk with dignity, against your need to protect the health and safety of your employees. A high probability of substantial harm to anyone will constitute an undue hardship.

The Supreme Court of Canada has indicated that each case must be decided based on its particular circumstances. It provided a list of non-exhaustive factors that ought to be considered when searching for evidence of undue hardship: [Hydro‑Québec v. Syndicat des employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec, section locale 2000 (SCFP‑FTQ), 2008 SCC 43, par. 12.]

  • Financial cost
  • Relative interchangeability of the workforce and facilities
  • Prospect of substantial interference with the rights of other employees
  • Problems of morale
  • Size of employer’s operations
  • Where safety is an issue, both the magnitude of the risk and the identity of those who bear it

The Supreme Court of Canada has also indicated that an employer:

…does not have a duty to change the working conditions in a fundamental way but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. [Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, par. 16.]

Furthermore, you are not required to create a position that has little to no economic benefit to the organization. [Canada Post Corp. v. C.U.P.W. 1993 CarswellNat 1729, par. 75.]

Your duty to accommodate will end when “the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.” [Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, par. 19.]

Tips for Employers

Problems generally arise where employees feel that their needs have been ignored by their employer. If you suspect or know that an employee has an accommodation need, you should:

  • Engage the employee in a confidential conversation to obtain specific details about the need;
  • Be caring and show a genuine willingness to work with the employee to ensure that their needs are met;
  • Gather the information that is essential in determining how the need should be fulfilled.

Once the requisite information is in place, you can determine what accommodation works best for the organization. This does not mean that you should ignore an employee’s preferences as it is always wise to work closely with your employees to fashion an accommodation plan they can live with. Ultimately, though, when faced with multiple forms of accommodation you may choose the one that is most appropriate from a practical and business perspective.