This general legal information (not legal advice) is subject to change, and there may be exceptions based on your specific circumstances. You should obtain independent legal advice before taking any action which may impact your legal rights. If you believe you have a claim that is impacted by accommodations in the workplace or want more information on the impact of the Duty to accommodate on a potential claim, an OA lawyer will be pleased to assist you with your situation.

Employment opportunities and positions are as unique and diverse as the people that work in them. At times, employees are unable to fully participate in the workplace due to a protected reason under human rights legislation. When this occurs, employers and unions have a duty to accommodate the employee to allow for their fullest participation in the workplace. The duty to accommodate recognizes that each person seeking an accommodation is unique in their needs and potential solutions. It is built on three principles: respect for dignity, individualization, and integration and full participation.[1]

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] The barriers to inclusion and full participation in the workplace vary from person to person, and the accommodation process must be flexible to eliminate those barriers. Both the employer, the union, and the employee have an obligation to cooperate in creating a solution that pairs the needs and requirements of the workplace with the abilities and limitations of the employee.

The Duty to Accommodate

Human Rights laws protect employees against workplace discrimination based on a protected class, such as: race, age, gender, sex and disability to name a few.[3] In the workplace, accommodations are designed to reduce or eliminate disadvantages and barriers experienced by employees on account of one of the grounds listed above. The duty to accommodate can arise in a variety of situations, for example: when an employee requires a different schedule to care for their child, needs modified duties when they become ill or injured, or requests time off to attend a religious event.

Respect for Dignity

The duty to accommodate employees with disabilities must be provided in a way that most respects their dignity. Human dignity encompasses “individual self-respect, self-worth and inherent worth as a human being”[4] and the accommodation process should not intrude on these qualities through marginalization, stigmatization or disregard for the autonomy of the individual.[5] The accommodation process should prioritize the privacy, confidentiality, comfort, individuality, and self-esteem of the employee when considering the accommodation.

Individualization

As stated earlier, the needs of both the employee and workplace are as varied and diverse as the number of people and job opportunities that exist. There is no single structure for how an accommodation should be put into practice. What may work for one employee may not work for another. The accommodation process must recognize the unique nature of each person’s needs and adapt to reflect those needs each time accommodations are needed.

Integration and Full Participation

The final goal of the accommodation is to promote the full integration and participation of the employee in the workplace. Accomplishing this goal requires that the employer attempt to eliminate barriers that prevent the employee from reaching their potential. It also requires  an inclusive design which promotes the integration of the employees in the workplace.[6] This means creating a workplace environment that is proactive in addressing the needs of the employees; one that reduces the need for employees to submit individual accommodation requests.

Fulfilling the Accommodation

Accommodations are personalized to the employee through discussions with management, or with union representatives in a unionized workplace. The duty to accommodate can be understood as two separate duties:

• Firstly, the procedural duty to accommodate is the process an employer must follow in accommodating the employee. The procedure in assessing and creating the accommodation is just as important as providing the accommodation because it outlines the needs of the employee, the objectives of the accommodation, and potential solutions to discriminatory effects in the workplace. For example, it can be the process of establishing the employee’s work-related limitations and abilities, meeting with the employee, and the communications between an employer and employee about the accommodation.
• Secondly, the substantive duty to accommodate is the actual accommodation itself. For example, it may be modified work hours, modified duties, or a ramp built to the entrance of the workplace. The substantive should achieve the highest form of accommodation..[7] The ability to accommodate exists on a continuum, and it is expected of employers to accommodate an employee to the point of undue hardship.

Undue Hardship

Undue hardship is the upper limit that the employer must reach in providing a substantive accommodation before it can be said that the employer has properly met its duty to accommodate.  Human rights laws provide that employers have a duty to accommodate to the point of undue hardship, considering cost, availability of outside sources of funding, and health and safety requirements.[8] No other consideration is to be accepted during the assessment of whether the point of undue hardship has been met.[9]

If an employer was to claim undue hardship as reasoning for why it cannot accommodate the employee further, it must prove that the hardship is objective, real, directly connected to the accommodation and quantifiable in terms of cost.[10] The employer is also expected to prove that it has sought outside sources of funding if the barrier to providing further accommodation is financial. A defense of undue hardship can also be used if the proposed accommodation would cause a significant negative impact on the health and safety of the workplace.

Closing Summary

To summarize, the duty to accommodate is an ongoing process involving discussions between the employer and employee with the goal of eliminating barriers in the workplace to full participation and integration. The process respects the dignity of the employee and acknowledges their unique and individualized needs in relation to the workplace. Employers are expected to participate in the duty to accommodate to the point of undue hardship.

If you are an employee that requires accommodations in your workplace or are an employer that wishes to get ahead of the duty to accommodate in the workplace, an OA lawyer will be pleased to assist you with your situation.

O’Neill Associates is proud to support students from the Bora Laskin Faculty of Law (Lakehead University, Thunder Bay) through the school’s unique Integrated Practice Curriculum (IPC) Program. The IPC, a Bora Laskin variation of the “articling” program students complete at most other law schools, matches students with law firms to work side-by-side with experienced lawyers for one full semester during the third and final year. This article was written by Steven Rayson who will be completing his third year IPC with OA in 2022.

[1]Ontario, Human Rights Commission, Policy on preventing discrimination based on mental health disabilities and addictions, (Policy), 13. Duty to accommodate (Toronto: HRC, 12 November 2021) [OHRC].

[2] Hydro-Quebec v. Syndicat des employe-e-s de techniques professionnelles et de bureau d’hydro-Quebec, section locale 2000 (SCFP-FTQ) c. Corbeil, 2008 SCC 43 at para 14.

[3] Human Rights Code, R.S.O. 1990, c. H. 19, ss. 3, 5(2) [HRC].

[4] OHRC, Supra note 1 at para 13.1.1.

[5] OHRC, supra note 1 at para 13.1.1.

[6] Ibid at para 13.1.3.

[7] Quesnel v. London Educational Health Centre,1995 CarswellOnt 4201, at para 16, 28 C.H.R.R. D/474.

[8] HRC, supra note 3 at s. 17(2).

[9] OHRC, supra note 1 at para 14.

[10] Ibid.