ACCOMMODATION FOR EMPLOYEES

While most employers understand the need to accommodate and are compassionate and understanding in their desire to do so, this is not true of all workplaces. Some employers may be hesitant to incur any added costs, or others may simply not understand the importance of their legal obligations. If your employer refuses to offer any accommodation, you have legal options available. 

Consult with an employment lawyer to determine your best course of action. Based on your particular circumstances and your location, they can help you determine how you should proceed, including whether to pursue the matter through a human rights tribunal, or whether you may have a better chance of success with a civil claim. Both courts and tribunals frown on employers who refuse to accommodate, and a lawyer will help strategize your best avenue based on timelines, delays and backlogs, and the particular details of your employer’s conduct.

While employers are required to accommodate to the point of undue hardship, there may be instances where your health or circumstances simply do not allow you to continue working. Where you may once have been able to perform in the role with accommodations, if those accommodations are no longer sufficient, you and your employer may be at an impasse. In that case, your employer may not be able to accommodate you in the workplace, but may be able to accommodate you by allowing you to take a temporary leave of absence.

If illness is what prevents you from working and your work offers disability coverage, you may want to consider applying for short term or long term disability benefits. The application process can be lengthy, but it may be the ideal option to remove you from your duties while you focus on your recovery. Alternatively, you may be eligible for Sickness Benefits through Employment Insurance.

While a leave of absence can be a form of accommodation, an employer will not be expected to allow you to remain off work indefinitely. If it becomes clear that there is no reasonable likelihood that you will be able to return to work in the foreseeable future (either with or without further accommodation), your employer may claim that your employment contract has been ‘frustrated,’ or that you are no longer able to perform your obligations under the contract. Learn more about frustration here.

While accommodations are ideal, there are situations where it simply will not work. A person who is medically unable to drive cannot be accommodated into a role that requires driving, and a person who is unable to use their arms will likely not be suited to a role where heavy lifting is required.

In law these sorts of requirements are known as bona fide occupational requirements, and they are instances where a requirement of a role will mean that certain individuals simply cannot fill the position. These situations are not discriminatory provided they are a good faith requirement of the role.

An employer will not need to accommodate if it would be cost prohibitive for them to do so. Employers are also not required to accommodate if it would potentially harm the safety of others, such as refusing to allow service animals into a sterile environment. Employers have an overall duty to accommodate, but there are situations where they can readily prove that this duty cannot be met.

Employees must keep in mind that while they are entitled to accommodation, those accommodations need to be reasonable, not perfect.

That means that your ideas for accommodation may not go as planned. If you require schedule modifications due to childcare issues, or religious observance, an employer may be required to accommodate you but the way that they do it may not be convenient to your schedule. This may include working overtime, unscheduled days, or another arrangement that may not be exactly as desired. Similarly for the purposes of accessibility, accommodations do not need to be perfect, but must instead be reasonable.

As an employee, this is an opportunity for you to get creative. If your employer has never come up with accommodations before, try and offer multiple solutions that you believe will work for both of you. They may be readily inclined to move forward with an idea if the costs and business interruption will be minimal.

Human rights law requires employers to accommodate to the point of what is known in law as ‘undue hardship.’ Human rights commissions have defined this as a fairly high threshold – employers cannot refuse to accommodate simply because something will be difficult or inconvenient. Employers will need to accommodate unless doing so would be detrimental to the business.

Take for instance the ramp vs. the elevator. If a business hires an employee who uses a wheelchair, then a ramp is likely the perfect solution to make the business accessible. If the barrier to enter the premises is fairly small, there are several wooden ramp options available at low cost which can benefit both that employee and other patrons alike. However, if a small business is operating in a two-storey building that does not have an elevator, the cost of installing such an elevator would likely be a significant burden for the business, and would create an undue hardship.

The good news is that most accommodations can be made at little or even no cost to the employer, often with the help of ingenuity and community resources. Changes in scheduling for example may present an inconvenience, but rarely will they create an actual undue hardship on a business.

Yes! At its best, accommodation should be a collaborative process, and there is no need for it to pit employers and employees against each other.

When speaking with your employer or manager about your accommodation needs, be clear about what your needs are and some ways that they can help you make things work. These are often simpler than your employer might expect, especially if they have previously created accommodations for an employee.

If you have required accommodations in the past, you likely have ideas about what works well for you personally, and what will help you to be successful. If you need scheduling accommodations, suggest ways that you can make up the time that won’t leave your employer scrambling. If you need accommodation for a disability, feel free to suggest resources and information that you know to be helpful, and offer suggestions of what has worked well for you in previous workplaces.

Employers will often need documentation in order to support an employee’s request for accommodation, and employees are obligated to provide necessary information. Employers do not simply need to ‘take you at your word’ when you tell them that accommodations are required.

Seeking accommodation may mean working with your doctor or health care professional to prepare the necessary documentation that supports your request. This does not mean that employers are entitled to your complete health history, or that they need to know your exact diagnosis or treatment plan. Rather, they are entitled to proof that substantiates your request. This will often be in the form of a letter or form from your doctor that describes your limitations, and what accommodations you will need. Similarly, you may need to document your childcare needs and show that they are not more like wants or preferences. Employers can request additional documentation if what you provide initially is insufficient.

Some employees may be hesitant about asking for accommodation. They may be used to being discreet about their medical condition, or protective of trying to maintain their independence. Many employees are often fearful that by revealing any need for accommodation, they will be placing their very employment in jeopardy.

Employees need not worry about that last part – employers are required under human rights law to accommodate employees, and failure to even attempt to do so can have serious legal consequences. Employees, however, need to be forthright about what their needs are. Employers cannot accommodate needs that they do not know about, and should not be put in a position to guess what an employee’s needs may be.

Employees should approach employers (managers or an HR representative generally) as early as possible to inform them of what accommodations they are seeking. Employers may ask for additional documentation, such as medical paperwork, to support an employee’s request. From there, employers and employees can begin the dialogue about how to craft workable, appropriate accommodations for the employee.

The requirement for employers to accommodate starts even before the job does. Employers should note as early as posting job advertisements that accommodations will be made available to potential candidates during the interview process. 

No two employees are identical, and even two candidates with similar circumstances may require different accommodations. For example, if visually impaired candidates are asked to prepare mock work products to have their work assessed, one candidate may require the instructions in large print format, and others may be better suited to receiving spoken instructions for the assignment. Potential employees, however, need to remember that employers are not mind readers. Individuals need to request accommodation, and to let employers know what sort of accommodation they are seeking so that an employer can assess if it will be possible and how they can make it work.

Employers are required to accommodate employees in the workplace under those protected grounds listed to the point of ‘undue hardship.’ In short, this means that accommodations cannot just be simple lip service, and are not just ‘nice to have.’ Employers will have to make real, concentrated efforts to accommodate employees.

Luckily for employers, many accommodations can be made without extreme cost or any serious interruption to the business. For example, employees who need to care for young children or take an elderly parent to a medical appointment may simply require some changes in their scheduling in order to meet their needs based on their family status – a protected ground.

For employees requiring accommodation on the grounds of disability, the needs are varied but can usually be adapted to fit the role. Hard of hearing employees may require the installation of a visual smoke alarm, or special telephone technology. Other employees may require specific break times, or the aid of a service animal. Most of these accommodations are easily feasible, but can be necessary for the employee to succeed.