Nadia Zaman here with another employment law video update.
Today I’m going to talk about an employee’s responsibilities under the duty to accommodate. Now whether you’re an employee or an employer you’ve probably encountered an accommodation situation. As an employee perhaps you need some form of accommodation but are unsure how to proceed; as an employer maybe you have received an accommodation request and are considering how to respond. Before I get into an employee’s responsibilities, it is important to briefly outline the concept of duty to accommodate.
Employers are required to accommodate individuals to the point of undue hardship, where the need for accommodation relates to a ground protected by human rights legislation such as disability. Undue hardship is the limit beyond which employers are not obligated to accommodate employers are expected to exhaust all reasonable possibilities for accommodation before they can claim undue hardship, which is a high threshold to meet. Undue hardship includes cost, health and safety considerations, in other words employers will not be required to risk the health and safety of others to accommodate one employee or to put the organization on the verge of bankruptcy.
The accommodation process is a two-way street. The employee must make a request for accommodation and support it with documentation, while the employer must assess the need for accommodation, options for accommodation, and their ability to accommodate the employee. That said, in some situations an employer may have a duty to inquire, where they’re aware or ought to be aware of a need for accommodation. So what are an employee’s responsibilities under the duty to accommodate? Employees must participate in the accommodation process by providing sufficient information so their employer can make an informed decision about appropriate accommodations and how they can be meaningfully implemented.
What does this look like in practice? Let’s say you need an accommodation based on disability. In making the accommodation request you will have to provide supporting documentation showing the functional limitations on your job duties, that is how does the disability impact your ability to do your job. Your doctor’s role will be to identify the restrictions, not to solve the problem itself. It is up to the employer to then assess your functional limitations as advised by the doctor and to consider accommodation options.
Remember employers are only obligated to accommodate an employee’s needs, not their preferences. So if your employer provides you with a reasonable accommodation option, but it’s not your preferred one, you have an obligation to consider the other accommodation option or options that are offered. An employee’s refusal or failure to participate in the accommodation process will defeat any claim based upon allegations of discrimination, so be mindful of the fact that accommodation is a two-way street; both the employer and the employee have responsibilities under the duty to accommodate.
If you’re concerned about your employer’s failure to accommodate, or if you have received an accommodation request from your employee, we can assist you through the process.
As we always say, if you think you need an employment lawyer you probably do.
So feel free to reach out to us and we would be happy to help you.
Thank you, that’s all for today.
