A duty to accommodate is an attempt to even the playing field in circumstances that inherently discriminate against a person based on grounds they have no control over and that are protected in several Canadian statutes. Protected (or prohibited) grounds typically refer to a person’s race, national or ethnic origin, colour, religion, age, sex, sexual orientation, disability and many other identifiers.
This post will mainly focus on the duty to accommodate with respect to employment in Ontario. If you are facing unfair and discriminatory challenges at work, speak with an employment and disability lawyer that’s passionate about protecting your rights.
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The Legal Framework of the Duty to Accommodate in Canada and Ontario
There are numerous statutes across Canada in each province that address discrimination and accommodation. The following four form the basis for the legal duty to accommodate in Ontario.
The Canadian Human Rights Act (CHRA)
The Canadian Human Rights Act (CHRA) is a federal law that prohibits discrimination on the various grounds common to all discrimination laws. Its purpose is to safeguard Canadians against discrimination when they work for or receive services from the federal government, First Nations governments, or federally regulated industries, including telecommunication companies, banks, transportation providers and broadcasters.
The Accessible Canada Act (ACA)
The Accessible Canada Act (ACA) is also a federal law that regulates organizations under federal jurisdiction. It aims to create a barrier-free Canada for persons with disabilities.
The ACA sets accessibility standards for organizations in areas such as employment, built environments, and transportation and imposes a duty on employers and service providers to accommodate the needs of individuals with disabilities.
Under the ACA, employers and service providers must take proactive measures to identify and remove barriers that prevent individuals with disabilities from accessing employment or services. These measures include collaborating with Canadians with disabilities, creating accessibility plans, implementing feedback processes and evaluating their plans through progress reports.
The Ontario Human Rights Code (OHRC)
The Ontario Human Rights Code (OHRC) is a provincial law that prohibits discrimination on various grounds, including race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status and disability.
The purpose of the OHRC is to ensure that all individuals have equal opportunities and access to employment, services, and facilities and to provide a mechanism for complaints to be heard in a tribunal that has the authority to levy fines against violators and award compensatory damages to complainants.
Accessibility for Ontarians with Disabilities Act (AODA)
The Accessibility for Ontarians with Disabilities Act (AODA) is a provincial law that aims to create a barrier-free Ontario for persons with disabilities. Like the federal ACA, the AODA sets accessibility standards relating to five areas: customer service, employment, information and communications, transportation, and the built environment (buildings and outdoor spaces.)
Explaining An Employer’s Duty to Accommodate
The duty to accommodate refers to the duty placed on employers, service providers, housing providers, unions and several other private and public organizations to adjust rules, policies or practices to enable the full participation of people who otherwise face barriers in those areas.
The Duty to Accommodate vs Undue Hardship in Employment
While employers have a duty to accommodate employees who are facing unfair challenges because of their status, there may be situations where it is not possible to accommodate an employee without experiencing undue hardship. Undue hardship refers to significant difficulty or expense that would make accommodation unreasonable.
The employer bears the burden of proving that accommodation would result in undue hardship. Factors that may be considered in determining whether undue hardship exists include the cost of accommodation, the impact on the employer’s operations, safety concerns and the size of the employer’s business.
Examples of What Employers Can Do to Fulfill Their Duty to Accommodate
An employer’s duty to accommodate depends on the discrimination faced by an employee and their ability to address it.
Providing Alternative Formats
For employees with disabilities, providing alternative formats such as large print or braille materials, screen readers or magnifying devices to help them read documents or emails may be necessary for them to perform to the same level as their peers.
Modifying Work Schedules
Employers can change an employee’s work schedule to accommodate doctor’s appointments, family obligations or religious holidays, for example.
Making Physical Changes To the Workplace
Employers can make physical changes to the workplace to make it more accessible for employees based on the types of disabling conditions they face. For example, they may install ramps, handrails or automatic door openers to make the workplace more accessible for employees with mobility impairments.
Providing Training and Support
This can include providing specialized training on assistive technology to help employees with disabilities use modified computers or other equipment.
An Employee’s Duty to Cooperate
The duty to accommodate employees is a two-way street, and employees also have a duty to cooperate in the accommodation process.
The employee’s duty to cooperate is based on the principle of good faith and requires employees to work with their employer to find appropriate accommodation measures. This duty requires employees to communicate with their employer about their accommodation needs, provide relevant information about their challenges and cooperate in the accommodation process.
Employees must also be honest and forthcoming in their communication with their employers. They aren’t allowed to intentionally withhold information that may be relevant to the accommodation process or provide false information.
Below are examples of what employees can do to fulfill this duty.
Providing Information About their Accommodation Needs
Employees have a duty to inform their employer of their accommodation needs. For example, this may include providing information about the nature of their disability, how it affects their ability to perform their job, and what accommodations they require – information they wouldn’t normally be required to disclose.
Cooperating in the Accommodation Process
This may include attending meetings with the employer to discuss accommodation options, participating in assessments to determine appropriate accommodation measures and providing feedback on proposed accommodation measures.
Providing Medical Information, if Required
Employers may require medical information to determine appropriate accommodation measures. Employees have a duty to provide this information to their employer. However, employees are not required to disclose their entire medical history, and employers should only request information that is relevant to the accommodation process.
If Accommodations Aren’t Enough
If you’re disabled and your disability prevents you from completing the core functions of your work despite your employer’s best efforts to accommodate your needs, you may need to consider short-term and long-term disability for financial support.