Duty to Accommodate Employees with Disabilities Toronto Employment Lawyer
Employers in Ontario and Canada have a legal obligation to accommodate the needs of employees with disabilities. This obligation is known as the duty to accommodate and is codified in Ontario’s Human Rights Code and the Canadian Human Rights Act. The duty to accommodate requires employers to modify workplace conditions, policies, and procedures to accommodate the individual needs of employees by adjusting workplace conditions, procedures, and policies. For example, if an employee requires regular treatments at a hospital, such as chemotherapy, an employer may allow them to adjust their schedule on the days when they need to be away during regular work hours. The duty to accommodate is intended to eliminate discriminatory barriers and protect employees with disabilities from discrimination in the workplace. Employers are expected to exhaust all reasonable efforts to accommodate up to the point of undue hardship.
The duty to accommodate is a particularly complex and onerous obligation for employers. Toronto employment lawyer Paulette Haynes and her team of workplace professionals at Haynes Law Firm regularly work with employers to identify and implement accommodations for employees in various industries. Understanding that employee accommodation requests can be quite costly, the firm is highly skilled at identifying creative, cost-effective solutions that benefit all parties. Paulette helps employers mitigate legal and financial exposure by creating flexible workplaces for employees with disabilities.
An Employer’s Duty to Accommodate
Employers must accommodate their employees’ needs based on protected human rights grounds, although accommodation is most commonly associated with physical and mental disabilities. The duty to accommodate refers to an employer’s obligation to provide an employee with necessary adjustments to their work environment to enable them to perform their job effectively. The adjustments required can vary considerably depending on the circumstances and must be considered on a case-by-case basis. Accommodations may involve:
- Adjusting the employee’s duties so that they can still provide necessary services while avoiding tasks they are unable to accomplish;
- Providing tools that enable the employee to perform their role effectively and efficiently (e.g. an ergonomic keyboard for chronic carpal tunnel syndrome); and
- Adjusting an employee’s schedule to accommodate or work around medical appointments, treatments, or medications.
Procedural vs. Substantial Duty to Accommodate
The duty to accommodate is often a two-step process, imposing both procedural and substantial duties on the employer.
The Procedural Duty to Accommodate
The procedural duty to accommodate involves the employer gathering the necessary information to determine the appropriate accommodation for the employee’s circumstances. Typically, an employee will be the one to request an accommodation, which should prompt the employer to take steps to find out as much information as they can about the employee’s needs. An employer should obtain the following information, to the degree necessary, to provide an appropriate and reasonable accommodation:
- specifics relating to the employee’s condition, insofar as it affects their ability to perform their job;
- expectations and timelines concerning recovery to ascertain how long the accommodation will be required; and
- requests from the employee concerning short or long-term accommodations they are seeking.
The Substantial Duty to Accommodate
Once the necessary information has been gathered, the employer must work with the employee to identify and implement an accommodation plan. Alternative approaches and possible accommodation solutions must be considered. If the employer is unable to find any suitable accommodations, an explanation must be provided to the employee. However, it is important to exercise caution when doing so, as an employer has a strict duty to accommodate employees to the point of undue hardship.
Haynes Law Firm reviews potential options with employers to ensure all reasonable efforts have been exhausted and all legal requirements have been met.
What is “Undue Hardship”?
If an employee has or develops a disability requiring a change to their work environment, an employer is obligated to find suitable accommodation to the point of undue hardship. Undue hardship refers to the lengths an employer is required to go to when exploring possible accommodations.
While employers are required to explore various alternatives for accommodation, they are not obligated to spend inordinate amounts of money or otherwise negatively impact the business. What qualifies as undue hardship will vary from case to case; however, it will be the employer’s responsibility to demonstrate undue hardship if they cannot accommodate an employee’s needs.
Proving undue hardship requires evidence that is objective, real, direct, and quantifiable (when cost is cited as a factor). Employers must provide specific data such as facts, figures, and scientific data to support a claim of undue hardship; merely claiming the cost is too high or the risk too great will not be sufficient.
There are certain circumstances in which an employer has exhausted all reasonable efforts to make an accommodation, and the work environment or duties remain untenable for the employee. In these cases, the onus lies with the employer to demonstrate all reasonable solutions for accommodations have been explored. If the employer cannot demonstrate this satisfactorily, the employee may have grounds for a constructive dismissal or wrongful dismissal claim.
Haynes Law Firm works with employers who feel they have exhausted their options for accommodation to identify potential compromises that may enable the employer and employee to continue their relationship and avoid potentially expensive litigation. From the moment potential conflict is identified and throughout the process, Paulette meticulously documents all accommodation efforts, including options considered, options refused, and options deemed unreasonable. Detailed records provide valuable evidence should litigation arise. Operating as both a risk-averse advisor and a savvy litigator, Paulette always plans for the best and prepares for the worst.
Contact Haynes Law Firm in Toronto for Employer Guidance on the Duty to Accommodate
Haynes Law Firm works with employers across various industries to identify and implement effective and economic accommodation strategies for employees with disabilities. With nearly three decades of experience advising employers on employee accommodation, Paulette Haynes helps employers explore all reasonable options to limit their exposure to a potential claim for wrongful or constructive dismissal. Should a claim does arise, the firm is prepared and ready to vigorously advance its client’s position before the Human Rights Tribunal or in court. To discuss how the team at Haynes Law Firm can assist your business, please fill out the online form or call 416-593-2731.