A workplace accommodation plan may look workable on paper and function well for months or even years. Then something changes. An employee’s medical restrictions evolve, operational demands shift, a modified schedule becomes difficult to maintain, or an accommodation that once addressed a barrier no longer does so effectively.
When an accommodation plan begins to break down, the issue is not necessarily whether the original plan was right or wrong. Instead, employers and employees may need to revisit whether the arrangement continues to respond appropriately to the employee’s needs and the realities of the workplace.
Accommodation Is an Ongoing Process
Ontario’s Human Rights Code prohibits discrimination in employment on several protected grounds. Where a workplace rule, requirement, or practice creates a disadvantage connected to a protected characteristic, an employer may have a duty to accommodate to the point of undue hardship.
Disability is one of the most common grounds giving rise to workplace accommodation, although accommodation issues may also involve creed, family status, gender identity, or other protected characteristics.
Importantly, accommodation is generally understood as a process rather than a single decision. Accommodation arrangements may need adjustments during or after implementation because an employee’s needs or an organization’s circumstances can change over time.
Why an Accommodation Plan May Stop Working
An accommodation plan can become ineffective for many reasons. In disability-related cases, an employee’s functional abilities may improve, decline, or change. Restrictions that were expected to be temporary may continue longer than anticipated, while an employee who initially required significant modifications may eventually be able to resume additional duties.
The workplace itself can also change. A department may be reorganized, job responsibilities may evolve, staffing levels may fluctuate, or the technology used to perform a job may change. An arrangement based on the employee’s former duties may therefore require reconsideration.
In other situations, experience simply demonstrates that the original accommodation is not accomplishing what those involved expected. A gradual return-to-work schedule, modified workload, remote-work arrangement, altered shift, or reassignment of duties may require adjustment once its practical effects become apparent.
Warning Signs That Reassessment May Be Needed
Accommodation arrangements do not always fail suddenly. Often, there are indications that the existing plan is becoming difficult to sustain or is no longer meeting its intended purpose.
For example, an employee may report that accommodated duties are aggravating a disability-related limitation. Absences may increase despite the accommodation. There may be uncertainty about which duties the employee can safely perform, or the employee may routinely be unable to complete responsibilities contemplated by the plan.
Employers may also encounter operational difficulties that were not anticipated when the plan was created. These developments do not automatically mean that accommodation has reached its limit. They may instead indicate that the existing arrangement should be reviewed.
Returning to the Accommodation Process
When circumstances materially change, the accommodation process may effectively need to begin again. That can involve identifying the current barrier, clarifying the employee’s present limitations or accommodation needs, and considering whether different arrangements are available.
The duty to accommodate has both procedural and substantive dimensions. The process used to explore accommodation can therefore be significant, separate from the ultimate accommodation that is provided. Organizations should take an active role in exploring possible solutions.
A reassessment may result in minor modifications to an existing plan. In other circumstances, the parties may need to consider a substantially different arrangement.
Updated Medical Information May Become Relevant
Disability accommodation frequently requires information about an employee’s functional abilities, restrictions, and accommodation-related needs. When those circumstances change, previously provided medical information may no longer accurately reflect what the employee can or cannot do.
Employers generally do not require access to an employee’s complete diagnosis or medical history simply because accommodation is requested. However, sufficient information may be needed to understand the restrictions or limitations affecting the employee’s work and to assess possible accommodations.
Employees also have responsibilities within the accommodation process. These include communicating accommodation needs, providing relevant information regarding restrictions or limitations, participating in discussions about possible solutions, and cooperating with reasonable requests for information necessary to manage the accommodation process.
Employees Are Not Necessarily Entitled to Their Preferred Arrangement
Disagreements can arise when an employee believes that one particular accommodation is required while the employer proposes another.
Accommodation focuses on addressing protected needs rather than necessarily providing the employee’s preferred solution. Depending on the circumstances, several different arrangements may be capable of addressing the relevant workplace barrier.
The appropriate accommodation is individualized. Factors such as the employee’s actual functional limitations, the essential duties of the position, available workplace arrangements, and the effectiveness of proposed alternatives can therefore become important when an existing plan is reconsidered.
What If the Employee Can No Longer Perform the Original Job?
Some accommodation plans break down because the employee can no longer perform certain duties associated with their existing position, even with modifications.
In disability-related accommodation, the first question may involve whether adjustments could enable the employee to continue performing their current job. Depending on the circumstances, possibilities might include modifying duties, changing hours, introducing assistive technology, restructuring certain tasks, or implementing another arrangement.
Where remaining in the existing position is not feasible, alternative work can sometimes become relevant. Disability accommodation may require employers to consider temporary or permanent alternative work, including available positions that fall within the employee’s functional limitations, short of undue hardship.
When Coworkers Are Affected by an Accommodation
A workplace accommodation can sometimes affect scheduling, workload distribution, or how responsibilities are allocated among employees. This can become a particular source of tension when an accommodation continues for an extended period.
The impact on other employees may be relevant when determining how an arrangement functions operationally, but coworker frustration or inconvenience does not by itself establish undue hardship.
Under the Human Rights Code, the assessment of undue hardship is limited to prescribed considerations involving cost, outside sources of funding, and health and safety requirements. Factors such as business inconvenience, employee morale, and customer preferences are not independently recognized as undue hardship considerations.
When Does Undue Hardship Enter the Picture?
Employers are required to accommodate Code-related needs to the point of undue hardship, not indefinitely regardless of the consequences. The undue hardship standard is intended to distinguish ordinary difficulty associated with accommodating an employee from circumstances in which the impact becomes sufficiently serious. The analysis is highly dependent on the particular accommodation, workplace, employee, and evidence available.
The Ontario Human Rights Commission describes the standard as a high one and states that an organization relying on undue hardship must support that conclusion with objective evidence rather than assumptions or speculation.
Documentation Can Become Particularly Important
Accommodation plans often evolve through conversations among employees, managers, human resources personnel, health professionals, and disability-management providers.
Clear documentation can help identify what accommodation was implemented, why it was selected, the employee’s known restrictions, when the arrangement was intended to be reviewed, and what concerns have subsequently emerged.
When a plan stops functioning as expected, that history may also help distinguish between a temporary implementation problem and a more fundamental change requiring reassessment.
A Breakdown Does Not Necessarily Mean the Process Is Over
Perhaps the most important feature of a struggling accommodation arrangement is that the failure of one plan does not necessarily mean accommodation itself has failed.
An accommodation that worked six months ago may no longer correspond to an employee’s limitations. A temporary measure may need to be replaced with a longer-term solution. An arrangement that appeared reasonable before implementation may reveal unanticipated problems once tested in the workplace.
For employers and employees alike, changing circumstances can therefore require renewed communication and exploration of available options. Workplace accommodation is often iterative, with arrangements evolving as the employee’s needs and the workplace itself change.
Contact Haynes Law Firm in Toronto for Comprehensive Workplace Accommodation Advice
Workplace accommodation disputes can become complicated when an existing arrangement is no longer effective, medical restrictions change, return-to-work efforts stall, or employers and employees disagree about what should happen next.
Led by experienced employment lawyer Paulette Haynes, Haynes Law Firm assists employers and employees with issues involving the Ontario Human Rights Code, disability accommodation, medical restrictions, modified duties, return-to-work plans, workplace disability management, undue hardship, and employment-related human rights disputes. To schedule a consultation on your employment law matter, please contact us online or call (416) 593-2731.
