Frequently Asked Questions

ACCOMMODATION FOR EMPLOYERS

Accommodation can be a tricky one for many employers to wrap their heads around. While employers do their best to treat employees fairly, it can be surprising to learn about the times when you will need to go above and beyond to accommodate an employee with unique needs. It can be more surprising when those unique needs can come at a fairly significant inconvenience, whether through job modification, rearranged scheduling, or other assistance.

Yet accommodation has become a key tenet of Canadian employment law. Since the rules around pregnant employees began to change in the 1980s, the law has recognized that an employee should not be prejudiced against because of factors they cannot change, such as their age, race, disability, etc. Accommodation, however, does not always pit employees and employers in a win-lose scenario. It does not always need to be perfect, and at times may not even be feasible, and the law also recognizes these instances.

Employment law and human rights law often go hand-in-hand, and we frequently receive questions from employers about their workplace accommodation requirements. Here are just a few of the most common questions:

What is it that needs to be accommodated?

In each province’s human rights legislation (and in the federal human rights law, for federally-regulated employees) there is a list of what are known as ‘protected grounds’; criteria that employees and applicants for employment cannot be discriminated against based upon. The list varies between provinces, but generally includes race, ethnic origin, citizenship, sexual orientation, gender identity/gender expression, age, pregnancy, marital status, family status, and disability – just to name a few. 

Not all of these grounds spill over into the field of accommodation – it would be unlikely to need to accommodate an employee based on their race, for example. Accommodation usually tends to center around grounds such as family status (care issues), disability (physical accommodations), pregnancy, and occasionally some others as well.

When does accommodation begin?

The requirement to accommodate begins right from the moment an employer publishes the job posting seeking to fill a position.

Accommodation is not something that happens only after a probationary period, and it does not take effect months into a person’s employment like employee benefits might. The duty to accommodate actually starts from the moment the job is posted publicly. For example, a candidate with a disability should not be prohibited from applying for the job, or participating in the interview process, just because of their physical limitations. 

Remember though, accommodation does not mean that you are required to hire this candidate. You can still judge the interview as you would any other, and ultimately make a decision based on who is the best candidate for the role. What you are doing by ensuring that your application process is accessible is allowing all qualified candidates to have an equal chance at employment.

How far do we have to go to accommodate someone?

This is a question that can perplex employers. Accommodation is often confused with discrimination, and employers are left asking that if they simply don’t discriminate and treat everyone equally, will that count as accommodation? The answer is no – the law requires employers to accommodate to the point of what is called ‘undue hardship.’ 

Undue hardship is actually a fairly high threshold to meet, and this means that accommodation may not be easy or cheap in all cases (although it is often both). It means that some “hardship” is expected.

Granted this may look different on the ground depending on the size and nature of the employer. Large companies may have resources readily available to offer, such as for candidates who are hearing or visually impaired. For a small business, these sorts of resources may not be handy, but other reasonable accommodations may be available, such as allowing an interpreter to attend the interview, or conducting the interview over Zoom to accommodate a candidate with a mobility disability.

The standard of ‘undue hardship’ is applicable for both applicants and employees. If an employee is the lone caregiver for an elderly parent, for example, and they need to take their parent to a series of medical appointments, employers will be required to accommodate this in scheduling, even if it does create a headache. Similarly if an employee is hearing impaired, then the employer may be required to make some physical modifications to their workspace, such as supplying that employee with a special telephone system, or installing a visual fire alarm in the premises. There are several helpful guides available for how to implement these accommodations. Learn more about an employer’s duty here. 

While some accommodations may come at an expense, an employer is also not required to put themselves into financial peril from doing so. A small business with two storeys for example may simply not have the budget to install an elevator to accommodate someone who uses a wheelchair. An employer is also not required to make accommodations that may jeopardize the health and safety of other employees. If you are concerned that accommodation will cause undue hardship, speak with an employment lawyer to discuss your options. 

How does the process work?

Once an employee makes a request for accommodation, there should be an ongoing dialogue. You are entitled to ask for enough information so you can understand the limits on their ability to carry out their duties. If an employee tells you that they need accommodation, it is always better to ask what their needs might entail rather than assume. Not all visually impaired people have the same restrictions, for example – one individual may be able to read print with the right magnification tools, another may require materials or instructions in an audio format. If you need further resources, there are agencies that may be able to offer suggestions or assist with accommodations, such as the Canadian Hard of Hearing Association for example.

Once you understand the limits, you can assess if there is a legitimate need for accommodation. Then you can determine options for accommodation and assess if any are viable without reaching the point of undue hardship. Finally, you will decide upon the form of accommodation you will offer, or determine that you cannot offer any, and communicate your decision to the employee.

How will we know what sort of accommodation to provide?

This is a great question because privacy laws also come into play. Remember that if an employee is asking for accommodation based upon a disability, for example, you cannot inquire about the nature of their medical issue or what led to the disability.

What you can request, though, is guidance from their physician about what sort of accommodations may be required. This may come via what is known as a ‘functional abilities form,’ or another sort of medical documentation, but ideally it’s one that provides you guidance on what modifications will be required of you as an employer. If the documentation the employee provides is not clear, you can always request further clarification.

What if we cannot accommodate a person in a specific role?

There are of course times where a person cannot be accommodated in a certain role, either temporarily or permanently, and the law understands this.

There are certain job requirements so intrinsic to a role, that if an employee cannot perform those exact duties then they are unable to continue in a role. A furniture mover may be legally required to lift 50 lbs or more, which would disqualify anyone who cannot meet this condition from working in the role. Similarly, a requirement for an employee to have a driver’s license as a necessary part of their duties may rule out an employee who is unable to drive due to age or disability, even though both are protected human rights grounds.

These requirements are known in law as bona fide occupational requirements. The name implies that they are requirements made in good faith, and not for the purposes of excluding a specific individual or group. Even though an employee may seek to challenge the restrictions in court, employers have a strong defense when they can prove that a decision was made based on a bona fide occupational qualification or requirement.

Do we have to do everything that an employee is asking for?

No. The law requires that accommodations must be ‘reasonable,’ and while most employees will be reasonable in their requests, not all employees will be. 

This also means that an accommodation may not be perfect. Amending scheduling for example, either for a religious observance or for a childcare requirement, might mean that an employee makes up the time in overtime or on an unscheduled day. These may not be perfect accommodations from an employee’s perspective, but they would be reasonable ones. 

At its best, finding accommodations for an employee should be a collaborative effort between employers and employees. This does not mean, though, that every solution is going to be a perfect one. It also does not provide employees requiring accommodation with carte blanche just because they have a different status. The ultimate goal of accommodation is to level the playing field, not to give any one employee an unfair advantage.

Our premises are not wheelchair accessible, will we need to accommodate wheelchair users?

This question comes up frequently, especially with employers that are simply leasing space and do not own their buildings. Under accessibility legislation that exists in some provinces (such as the AODA in Ontario), businesses are legally required to comply with certain accessibility standards. However, like other areas of accommodation, there is an undue hardship standard if accommodation would not be financially or technically feasible, or if it would compromise health and safety. 

When it comes to wheelchair usage for example, there may be some accommodations that are readily feasible, and others that might reach that undue hardship threshold. If the only inaccessible area of a business is a single step, for example, there are several services that can provide and install accessible ramps at a reasonable cost. Renovating a washroom to make it accessible may also be considered a reasonable expense to accommodate an individual. 

However, if full wheelchair accessibility would require the installation of an elevator, and the business either could not afford it or it would simply not be reasonable given the age and structure of the building, that would likely be considered an undue hardship.

Do we have to modify schedules to accommodate an employee?

The answer is sometimes yes. Within the past decade human rights law began to include ‘family status’ as a protected ground, which is usually defined as the status of being in a parent or child relationship. 

Courts and tribunals have offered various opinions as to what this actually means. Generally speaking though, employees may require accommodation if they have a duty of care to either minor-age children or an elderly parent that may interfere with their work schedule. Different ruling bodies have implemented different standards of responsibility, but if an employee needs to take their young child to a doctor’s appointment and there is no one else available to take them, you as an employer will likely be required to accommodate. These accommodations do not need to mean paid time off – they can take the form of unpaid time, lieu time etc. – but you cannot penalize an employee for taking that time for their family needs.

Do we need to accommodate service animals?

The short answer is yes, you do. Service animals are often wrongly considered to be pets, but they are actually working animals on the job. Think of them as furry employees who you don’t have to place on payroll. 

All jokes aside, service animals are what allow some employees with disabilities to participate equally, and so they will need to be accommodated to the point of undue hardship. There are, however, environments where it would be unsafe to allow a service animal, such as where they may interfere with a health and safety issue. In that case a service animal may not be allowed, but the person would need to be accommodated in other ways.

What if an employee refuses to accept our offers of accommodation?

Accommodating some situations can be challenging, and may require some out-of-the-box thinking to come up with customized solutions. Again, the threshold here requires that accommodations must be reasonable, but do not need to be perfect. 

If an employee refuses all reasonable attempts at accommodation despite the employer’s best efforts, then the employer has met their duty. If the employee is still refusing to perform their working duties, or to attend work, that may then amount to insubordination, or they may be deemed to have abandoned their position. Consult an employment lawyer before making any firm decisions in these situations, and be sure to keep careful notes as to what attempts at accommodation have been made and the employee’s response each time.

Can we be penalized for refusing to accommodate at all?

Yes, there may be stiff penalties for employers who refuse reasonable accommodation requests. While courts can interpret human rights legislation, human rights tribunals in each province and federally are specifically set up to deal with complaints such as failure to accommodate an employee. 

Both courts and tribunals might award an employee damages under human rights law, and may penalize employers with additional damages depending on their conduct. The most egregious cases of employers refusing to comply have seen human rights tribunals penalize employers for their conduct with damage awards into the six-figures, which have been subsequently confirmed by the courts.

Accommodation can be tricky, but we are here to help.

At Rudner Law we regularly assist employers in crafting solutions that can accommodate employee’s needs with minimal interruptions to business operations. Accommodations allow employees to succeed, but when done well they should help employers succeed as well.

Contact us today.