Essentially, Canadian human rights legislation provides or states that an employer has a duty to reasonably accommodate on an ongoing basis those with a disability unless the employer can prove “undue hardship.” The “duty to accommodate” means that employers must implement the necessary measures that will allow employees with limitations due to illness or disability to work to the best of their ability.
What is undue hardship?
An example of undue hardship for an employer might be where the cost of providing the accommodation would be so high as to threaten the organization’s survival. Other factors that are used to assess undue hardship for employers are health and safety risks, size and flexibility of the workplace, disruption of existing collective agreements, morale of other employees and interchangeability of workforce and facilities. Undue hardship does not include inconvenience or disruption, or belief by the employer that the cost will be too high. It requires a degree of effort by the employer to explore and make an accommodation. The specific circumstances of the employer will also influence whether undue hardship is an issue.
For example, smaller employers may have fewer resources or jobs available to provide accommodations. As well, the employer is not obligated to create an unproductive position. The employee has to be able to do the essential job duties of an existing, restructured or newly assigned position. Once an employer has found a reasonable solution, their legal duty to accommodate is done.
Is cancer considered a disability protected under human rights?
Disability, for the purposes of work accommodation, can be the consequence of a disease, injury or condition that impairs one’s ability to perform their normal functions in life and work. It can include those who have, or are perceived to have, a mental or physical disability, whether visible or non-visible, with some degree of permanence. For example, this does not include a brief event such as a headache but could include cognitive impairment related to a head trauma which interferes with concentration and productivity.
Who is responsible for finding reasonable accommodation?
While the primary responsibility for the process of reasonable accommodation is with the employer, the employer, employee and unions (if applicable) all have a duty to cooperate and be reasonable in the accommodation process. It is a legal right but requires the employee to cooperate with the process.
The employee, employer and union all have an interest in achieving a resolution. Often, the best solutions are achieved when those involved cooperate with one another.
- Designing workplace requirements and standards that do not discriminate against those with a disability.
- Requesting medical information from the employee’s doctor concerning the employee’s disability-related workplace needs.
- Accommodating individuals to the point of undue hardship. The first priority is the modification of the duties and practices related to the person’s present position as recommended by medical reports.
- Showing that attempts to accommodate were serious, conscientious and genuine – “in good faith”.
- Employers must demonstrate their best efforts in ensuring that discrimination or harassment based on disability is not permitted on the part of either the employer or by co-workers.
The employee has a duty to accept a reasonable accommodation even if it is not the preferred solution. If the solution proposed by the employer is reasonable and the employee declines or the employee fails to cooperate in finding accommodation, the employer does not need to do more and this could result in termination of employment for the employee. If an employee refuses an offer of alternative employment, the employee needs to provide a reasonable explanation for refusal. In general, an employee is not expected to accept an accommodation involving significantly lower wages, benefits, job security and opportunities for advancement unless the only available job that is available satisfies reasonable accommodation. The employee’s responsibilities include the following:
- Providing sufficient information to the employer so they are able to adequately assess how a reasonable accommodation can be made.
- Being cooperative and assisting in identifying and implementing an appropriate accommodation.
- Not expecting a perfect accommodation.
- Supplying job-relevant medical information. This means non-diagnostic information only, such as functional limitations and current capabilities.
- Representing the employee
- Working with the employee and the employer in accommodating the worker
- Accepting some modifications or exceptions to what is outlined within the collective agreement
- Representatives must not interfere with reasonable efforts by the employer to accommodate the employee
- B.C. Human Rights Tribunal
- Ontario Human Rights Commission (2000) Employers Guide to Human Rights
- Canadian Human Rights Commission (2013): Duty to Accommodate Fact Sheet
- Canadian Human Rights Commission (2013): How can I prevent discrimination in my workplace?
- Alberta Human Rights Commission Interpretive Bulletin: Duty to Accommodate (PDF)
- Introduction to Return to Work Coordination: National Institute of Disability Management and Research (2008), Module B.
- Legislation and Disability Management: National Institute of Disability Management and Research (2005). Module I.
- Lynk, M. (2008) The Duty to Accommodate in the Canadian Workplace: Leading Principles and Recent Cases. Ontario Federation of Labour.
- National Union of Public and General Employees Research (2002) Duty to Accommodate (PDF)
For more information see:
- A guide for managing return to work – Canadian Human Right Commission
- Policy and guidelines on disability and the duty to accommodate (PDF) – Ontario Human Rights Commission