HR Inclusive Policy Toolkit
Inclusive Accommodation: What does it mean?
- Canadian human rights law generally recognizes that employees have the right to accommodation of disabilities in the workplace up to the point of “undue hardship” by the employer. Undue hardship is the point when courts or tribunals will determine the cost to the employer of accommodating an employee further is more than the employer can reasonably be expected to bear. Employers are expected to bear some non-trivial costs in accommodating an employee. Factors that courts and tribunals use to determine whether accommodation has become “undue” include the size of the employer (bigger employers have a greater capacity to accommodate), the financial means of the employer (greater means leads to a greater capacity to accommodate), the health and safety risk to other employees or stakeholders, and the impact on other employees’ rights. If an employer is in doubt about their obligation to accommodate further, they should seek legal advice.
- Accommodation is as much about organizational culture and trust as it is about the policies that are created and the legal rules that are in place. An open and accepting culture towards accommodation will increase cooperation with employees and reduce conflict in the accommodation process (leading to more successful accommodation solutions in the future).
- At the heart of the accommodation process is the responsibility, shared by all parties, to have a meaningful dialogue about accommodation, and to work together respectfully towards accommodation solutions. Everyone involved should cooperatively engage in the process, share information, and work towards potential accommodation solutions. However, it ultimately remains the employer’s responsibility to find an adequate accommodation (short of undue hardship) once the need for accommodation has been established, and the employee has provided sufficient medical or other information to identify their workplace limitations or needs.
- A workplace accommodation is any change in the work environment or the terms and conditions of employment that allows a person with limitations in their abilities, or who faces barriers from the standard rules and conditions of work, to perform their job.
- Accommodation is necessary to ensure that people with disabilities have equal opportunities, access, and benefits.
- Accommodations can be temporary, periodic, or long term, depending on the employee’s medical condition (though lengthier accommodations may ultimately be subject to the standard of “undue hardship” to the employer).
- Accommodation is not an all-or-nothing proposition, and can be seen as a continuum. Where the most appropriate accommodation would result in undue hardship, the organization must consider other alternatives, such as phased-in or next-best accommodations.
- The employee has a duty to cooperate in the accommodation process. Part of that is accepting a reasonable offer of accommodation by the employer. An employee is not entitled to their preferred or perfect accommodation, but a reasonable accommodation. If the employer offers a reasonable accommodation that is justifiable and meets their operational needs, the employee must accept it. If the employee refuses and insists on another accommodation, the employer is likely released from their legal duty to accommodate further. The employer should seek legal advice before making this conclusion.
- An employee generally has an obligation to inform the employer of their need for accommodation, or else the duty to accommodate will not be triggered. However, employers may have a duty to inquire if an employee requires accommodation, if it is reasonably clear they may need one. For example, in the case where it is apparent an employee’s performance may be affected by an addiction.
- Examples of accommodation could include:
- changes to organizational policies and practices,
- changes to a physical workspace,
- adaptations to the equipment, tools, or uniform used,
- flexible work hours or job sharing,
- relocation of the workspace within the workplace,
- the ability to work from home,
- reallocation or exchange of some non-essential tasks for others, and
- time off for medical appointments.
- It is important that the accommodation process, as well as the accommodation itself, be effective and respect the dignity of accommodation seekers.
- The duty to accommodate has both a substantive and a procedural component. The procedure used to assess an accommodation request (the procedural component) is often as important as the substantive content of the accommodation (the accommodation ultimately provided). Failure to perform either component of the duty is generally considered to be a failure to meet the duty to accommodate (carrying legal risk). The duty to accommodate is informed by three principles: (1) respect for dignity, (2) individualization, and (3) integration and full participation.
Why is it important?
- In Canada, employers have a legal duty to accommodate employees with limitations due to a medical condition or disability in other forms. This obligation is set out in human rights legislation in every Canadian jurisdiction. Most employers in Canada are subject to the human rights legislation in the province(s) in which their employees work. A smaller number of employers (such as banks, airlines, and railways) are subject only to federal employment legislation including the Canadian Human Rights Act. Failure to meet this obligation can lead to liability for failure to accommodate and discrimination.
- The Supreme Court of Canada has described the goal of accommodation as to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.2 Properly meeting the duty to accommodate can increase the productivity of an organization and ensure an employee is enabled and empowered to fully participate in the workforce.
- Reasonable accommodations often benefit all employees. For example, businesses who strive to make information available in a variety of formats are able to more effectively meet the diverse learning needs of their employees.
Sample Inclusive Workplace Policy
The following policy sample should be part of a larger human rights and accommodations policy. This larger policy should also address any legislatively mandated human rights requirements in your jurisdiction, the purpose of the policy, the scope of the policy’s application, who is responsible for administering which parts of the policy, and the procedures that must be followed under the policy.
[Name of Organization] will provide workplace accommodation to the point of undue hardship to ensure that individuals who are otherwise able to work are not discriminated against and excluded from doing so because of a disability, or other protected grounds.
Accommodation requests will be considered with the principles of dignity, individualization, inclusion, and full participation. Employees with an Accommodation Plan will be notified in advance of any changes that could affect the terms of their plan.
[Name of Organization] is committed to maintaining confidentiality when providing accommodation and will only disclose personal information when necessary to provide the accommodation or as otherwise permitted by law.
Putting it into Practice
- The parties to the accommodation process must share information about accommodation needs and potential solutions. In some cases, employers may need to get expert opinions or information to confirm the need for accommodation, or to determine appropriate accommodations.
- Employers may only request information that is relevant to the work situation and the accommodation request at hand. This includes medical information from the employee’s physicians or healthcare providers that identify the employee’s limitations with sufficient clarity to permit an assessment of appropriate accommodations. This does not entitle an employer to the employee’s diagnosis, however. Employers should be careful to collect only information that is necessary in order to avoid a finding that they have overreached in their request.
- Managers should offer assistance and accommodation to persons who are clearly unwell and in need of assistance, or who are perceived to have a disability, even where no accommodation request is made. This is called the duty to inquire referred to above.
- Funding may be available to help alleviate accommodation costs. (See list at www.neads.ca)
(Provincial differences, unionized workplace considerations)
- Human rights statutes in some jurisdictions refer to “reasonable accommodation.” Despite the difference in wording, “reasonable accommodation” imposes the same requirements as “accommodation to the point of undue hardship.” As stated by the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud  S.C.R. 970 “The extent to which the discriminator must go to accommodate is limited by the words ‘reasonable’ and ‘short of undue hardship.’ These are not independent criteria, but are alternate ways of expressing the same concept.”
- Under the Ontario Human Rights Code (OHRC), organizations are required to prevent and remove barriers and provide accommodation to the point of undue hardship. Organizations, including their officers, managers, supervisors, and union representatives, have a shared obligation to design for inclusion of persons identified by OHRC grounds, as well as to remove barriers and provide accommodation. Failure to fully explore accommodation options and to fulfil the duty to accommodate is a violation of the OHRC. Employers also have to be able to defend discriminatory rules, requirements, and policies by showing that they are “Bona Fide Occupational Requirements.” The OHRC prevails over collective agreements. Collective agreements or other contractual arrangements cannot act as a bar to providing accommodation.
- Legal Considerations (from www.hirefortalent.ca with some minor edits)
- In general, applicants and employees do not have an obligation to disclose that they have a disability or what type of disability.
- However, in some cases this would become a legal obligation:
- If the applicant needs an accommodation during the interview process or at any other time during the job application process.
- If the employee needs an accommodation in the workplace or at any other time in order to carry out the essential duties of his or her employment.
- An individual with a disability is required to provide sufficient information about their restrictions and accommodation needs in support of their accommodation request so that the employer can properly and promptly fulfill their “duty to accommodate” up to the point of “undue hardship.”
- Applicants and employees should disclose the fact that they have a disability, and require accommodations, to an employer if:
- The disability is likely to affect their work performance or their ability to carry out any specific job duty.
- The disability could potentially create a health or safety risk to themselves or to any co-worker.