Accommodation is a way for employers to help injured employees effectively overcome limitations caused by disabilities. Usually, accommodations are easy to implement, inexpensive, and demonstrate a commitment to a healthier, more equitable workplace.
According to the Canadian Human Rights Code, accommodation is required when an employee’s disability results in “functional limitations” preventing them from performing an “essential duty” of their job. Accommodations are “reasonable” so long as they don’t impose “undue hardships” on the employer, and recent Supreme Court of Canada decisions have placed the burden on employers to demonstrate how providing accommodations will cause undue hardship (usually by compromising safety or jeopardizing the organization’s solvency.)
Many people with disabilities, psychiatric or otherwise, won’t have functional limitations and so don’t need accommodation. Sometimes a short period of accommodation is all that’s required (for example, setting a flexible schedule for an employee returning to work after an illness). Employees with mental health problems may not have functional limitations, but someone with depression or an anxiety disorder, for example, might find that accommodation helps them to work much more productively, and with fewer health and disability costs.
Are there limits on the duty to accommodate?
The law does set limits on the obligation of an employer to accommodate an employee. In Canada, the limits are described as either “reasonable” accommodation or accommodation to the point of “undue hardship,” depending on the legislative requirements. In reality, there is very little difference between those two concepts.
The Ontario Human Rights Commission has published guidelines to the duty to accommodate. These are not regulations and do not have the force of law, but do provide guidance as to the Commission’s interpretation of obligations under the Ontario Human Rights Code. Each province has varied expectations with regards to accommodation. Please review with your provincial Human Rights Commission for further information.
The duty to accommodate is an individual remedy. There is no list of required accommodations. Accommodations are determined by the employer and employee, and involve certain principles:
The accommodation must respect the dignity of the individual. This means that the process used to request accommodation, and the accommodation itself, must not further stigmatize or prejudice the individual. For example, a person with a mental health problem who requires a quiet space for breaks during the day should not be required to take the breaks in the garbage room or another undesirable space. Rather, it should be space that is suitable for employee use.
Information about an accommodation should be kept confidential. The individual should feel comfortable that their request for an accommodation will be greeted with respect and not derision.
Accommodation must also be consistent with the overarching goals of full integration, rather than segregation, except where requested by the individual.
Since discrimination includes workplace harassment and prejudice towards people with mental health problems, accommodation may include activities such as workplace education, issuing a clear statement that harassment will not be tolerated, and ensuring employees are aware that they can report instances of inappropriate comments or attitudes in the workplace.
People returning to work after a disability absence have a right to accommodation. This may include alternative work as well as accommodation so they can continue in their original job.
What criteria will be used to determine if the employer has met the duty to accommodate?
In determining whether an employer has met his or her obligations, it is important to look both at the process the employer used as well as the actual accommodation. Among the criteria that are considered by the courts are:
Did the employer try to find a way to meet the individual’s needs in a way that was not discriminatory?
If there were alternatives, what were the reasons they were not used?
Is there a way for an employer to meet their objectives in a way that is less discriminatory?
Is the standard, policy or procedure necessary for the employer to accomplish their objectives, and is it broader than it needs to be?
Have all parties cooperated in search for an alternative? This includes unions and professional associations.
Is the cost of the accommodation or the impact of the accommodation so great that it changes the nature of the employer’s business?
What is undue hardship?
In Ontario, under the Ontario Human Rights Code, three criteria are used to determine whether undue hardship exists:
Whether other sources of funding are available
Health and safety requirements that may exist
Some provincial Human Rights Codes limit the factors that can be considered. Undue hardship under the Ontario Human Rights Code may be more restricted than it is under other human rights legislation. Other criteria, such as employee morale and the collective agreement between the employer and union might also be taken into account. It is important to remain up to date with the criteria in your jurisdiction as they evolve.
What factors are considered in determining whether the cost of accommodation is undue hardship?
The courts are increasingly requiring facts and figures related to the actual accommodation, not simply speculation. For example, an employer cannot claim that the cost of accommodation will constitute undue hardship if it is based solely on a projection that if the accommodation were required for an additional 100 people the company could not afford it. The calculation must also take into account any benefits from the accommodation, as well as funding that can be obtained from other sources to cover the cost of accommodation.
Projected costs, such as increased insurance liability, can only be taken into account if it can be shown that there would actually be a significant increase, and, in addition, that it would meet the test of undue hardship.
Other factors that will be considered in determining whether the cost is so high that it constitutes undue hardship are:
Is the cost part of the day-to-day operational costs of the business?
If it is a large business or activity, including government, can the cost be spread over the whole organization rather than one department’s budget?
Are there grants or subsidies available from government or other funders to offset the cost of accommodation?
If the accommodation requires capital expenditures, can it be carried over a number of years?
Are there savings, such as tax deductions, that will offset the cost?
Will the accommodation result in improved efficiency or productivity? For example, would allowing an employee to work flexible hours reduce the cost of absenteeism? If so, the benefit should be taken into account when considering the cost of accommodation.
Can the accommodation be phased in over time?
In the future, it is likely that another consideration may be whether the barrier could have been prevented. When the Ontario Human Rights Code was originally passed, the concept of barrier removal and duty to accommodate were relatively new. In the past 10 years both the courts and legislators have been turning their attention to these issues. Therefore, there is a greater expectation that the needs of people with disabilities will be taken into account when planning all aspects of a business. In this context, it will be harder for an employer to argue that removing a newly created barrier constitutes “undue hardship” even if it is a high cost.
Is there a limit on how much an employer must spend to accommodate an employee?
There is no dollar limit for accommodation. Instead, the test is whether the cost is so high that it would threaten the viability of the employer’s business or change the nature of the business.
What about health and safety requirements?
In some cases there may be a real health and safety risk that cannot be accommodated. For example, if someone is on medication that makes them drowsy it may be a health and safety risk to allow them to continue driving a truck. However, before health and safety can be used as a justification for treating an employee differently or refusing to hire someone, it must be shown that the employer cannot accommodate the employee to allow them to maintain their employment or be hired for the job. Again, the accommodation is required to the point of undue hardship.
Some of the considerations are:
Is the activity or requirement essential for the job? For example, while driving a car may be something that is useful to the employer, before they can refuse to hire someone who is unable to drive because of their disability they must demonstrate that driving is a key component of the job.