The Duty to Accommodate
The duty accommodate is the duty to ensure that every individual is provided equal opportunity without discrimination based on the enumerated grounds listed in the Ontario Human Rights Code and Canadian Human Rights Act. These governing legislations require an employer to modify their workplace in order to assist with any challenges any employee requiring accommodations may face based on any of the 16 protected grounds.
As individual needs vary greatly, in turn, so do the accommodations required. It’s an employer’s responsibility to assess the requirements and duties of the job and discuss with the employee what strategies or positions may work in their favour. If these adjustments have detrimental costs or endanger the health and safety of the workplace, the employer may claim undue hardship and would not be seen to have violated the Code or the Act.
Although employers have obligations to accommodate those who require it, there are also obligations that the employee must fulfill in order for these accommodations to be met. The Human Rights Commission has a Policy and Guidelines on Disability and the Duty to Accommodate which discuss what is required of the employee when it comes to accommodations. A few of these are listed below as employee obligations:
- Request accommodations
- Answer questions or provide information regarding relevant restrictions or limitations, including information about health care professionals
- Work with the employer on an ongoing basis to manage the accommodation process
Request for Accommodation(s)
As there are many enumerated grounds that are not always present to the naked eye, employers are encouraged to not make rash judgments in determining whether an accommodation is required or not. An employee who requires accommodation or who thinks that there is something that may affect their employment should relay this to their employer. This allows the employer to take the time and prepare a plan in the event that something should arise forcing the employee to require this entitlement. Unfortunately, many people may fear that discussing accommodation in the workplace may negatively affect their employment and refuse to discuss it as a result. This in turn forces the employer to assume that no accommodation is needed which can directly impact the employee’s job performance.
In the case of the Canadian Mental Health Association v the Ontario Public Service Employees Union Local 133(February 2012), the employee had been terminated during her probationary period based on poor performance. During her short tenure, she had disclosed to her supervisor that she had suffered from epilepsy. Her supervisor informed her that if she required accommodations, the company would be happy to provide her with same. Unfortunately, she was terminated shortly thereafter, and was told her performance was not up to par. The employee then claimed that she was discriminated against based on her disability.
The judge concluded that the employee had not been discriminated against as the employer could not have reasonably known that she had epilepsy before it was disclosed, her disability had never impacted her work prior, and she had never inquired about accommodation even when the idea was presented to her. Therefore, the employer did not have a duty to further investigate if accommodations were required.
Answer questions or provide information regarding relevant restrictions or limitations
Employers are not always easily able to tell what restrictions or limitations employees have nor are they always able to identify what remedies or solutions may be required. Since it is an employer’s duty to initiate alternate provisions, they may ask questions or request medical information from your physician in order to provide the appropriate accommodations. While this information may be sensitive and of a highly personal nature, it may be necessary for an employer to have access to it in order to allow an employee to get the resources they need and avoid them losing their employment.
In Salim Al Saidi and Brio Beverages Inc. (June 5, 2001), N9811290 (Alta. HRT) an employee was absent because of injuries he sustained from a car accident. During this time, the employer requested that the employee keep him updated throughout his absence in regard to medical documents as well as a prospective return to work date. The employee, after some time, failed to respond to the employer and was finally informed that if he failed to provide medical documentation to support his absence then he would be seen to have abandoned his position. After not hearing from the employee, the employer communicated that the employee had abandoned his position at Brio Beverages Inc.
More recently in Misetich v Value Village Stores (2016 HRTO 1229), the dismissal of an employee was upheld after an employee had failed to assist in her accommodation process. The employee suffered an injury and was offered an alternative position with lighter duties in order to accommodate said injury. Unfortunately, the hours of this new position included evening work which affected her ability to care for her elderly mother. The employer asked for her to provide medical documents proving that her mother was ill and documentation proving that she was the only family member who could take care of her at this time. The employee failed to do so stating that she did not want to provide her mother’s personal medical records. The employer therefore had no information to the extent of the accommodation required by the applicant.
The tribunal concluded that she had failed to adhere to many of the requests made by her employer and therefore could not pass the test set out to evidence she had discriminated against based on family status.
Cooperate With The Entire Accommodation Process
As the employee who is seeking accommodation, it is important that they make a conscious effort to continually assist with the accommodation process. This may go beyond simply providing medical documentation and answering questions. In some cases, such as an alcohol/drug dependency, an employer may request for the employee to attend a program or do training in order to assist with their return to work. It is important that they make an effort in such cases as it shows that they are actively making an effort to continue their employment with them.
In a case called Star Choice Television Network Inc. v Tatulea (February 2012), an arbitrator came to the conclusion that the employee failed to participate in the accommodation process after the employer made several attempts to reach out to the employee and requested that he attend a 6-week program to assist with his return to work. The employee attended one day of the program and then failed to return. The employer attempted to contact the employee and discuss his return to work but was unsuccessful. The employee’s failure to cooperate and participate in the accommodation program subsequently led to his termination which was inevitably upheld by the Court.
An area of concern that may be of consideration in the future is the rise of employees dealing with poor mental health or mental illnesses. It is a possibility that one’s mental health may affect how they participate in the accommodation process. It may also be difficult for an employee to keep up constant communication with their employer during this time, or even participate in programs or attend training sessions that could involve aspects that aggravate their illness. This is an issue that employers in today’s age must also consider given that such health concerns have been increasing.
It is important for employees to understand that they must be actively involved in their accommodation request and process. Employees need to be open and honest with their employers and discuss what steps are required to tailor their work environments so that it is accessible for them. Despite some exceptions, all individuals who fall under a protected ground are entitled to accommodation. Therefore, employees should not only look into their own obligations in regard to accommodation but into their employers’ obligations as well, as this is an area where both human rights law and employment law overlap significantly.