The workplace is no longer what it used to be, and the circumstances that an employer must accommodate continue to expand. Be it childcare arrangements, medicinal marijuana, or transgender accommodation, human rights continue to impact the workplace. Employers expose themselves to significant liability if they fail to respond to these requests appropriately. Unfortunately, many make the mistake of dismissing unusual requests for accommodation without proper consideration.
As we all know, 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. These include disability, family status, gender identity and expression, and many others. Aside from undue hardship, another exception is a bona fide occupational requirement (“BFOR”), i.e. a skill or characteristic that is essential to a job, without which the job cannot be performed. Both undue hardship and BFOR are high standards to meet.
Positive Duty to Consider Accommodation Requests
Both parties have obligations to fulfil in the accommodation process. While employees must participate in the accommodation process by providing appropriate information, employers are obligated to genuinely consider any request for accommodation.
The procedural aspects of the duty to accommodate were explained in ADGA Group Consultants Inc v Lane:
“The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. You can include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural” duty to accommodate.”
Request Information to Understand Limitations on Ability to Carry Out Job Functions
When an employee requests accommodation, the employer is entitled to request sufficient information, including medical documentation, in order to allow them to understand the specific limitations upon the employee’s ability to carry out their duties that require accommodation.
For example, in the case of accommodating employees who use medical marijuana, an employer should obtain as much information about the employee’s restrictions and limitations as possible, including determining the impact on the employee of consuming medical marijuana and their ability to carry out their duties. This would require clear documentation from the prescribing physician regarding the impact of the medication on the individual, as the need for accommodation will have to be assessed on a case-by-case basis.
Notably, undue hardship includes cost and safety considerations. So employers will not be required to risk the safety of others in order to accommodate one employee.
That said, employers cannot assume that any employee prescribed marijuana poses a safety risk, and must review the evidence before making any decision. In Calgary (City) v Canadian Union of Public Employees (Cupe 37), the Arbitration Board held that the employer had a duty to accommodate off-hours use of medical marijuana for an employee even in a safety-sensitive position. The City, upon becoming aware of the employee’s marijuana use, placed him in a non-safety-sensitive position, pending investigation. In its investigation, the City determined that he had a substance dependency requiring treatment, and provided him with two options: 1) continue in a non-safety-sensitive position; or 2) consult with a doctor for further assessment. The Board found that the results of the employer’s investigation failed to prove that the employee had substance abuse issues or that he had been impaired while on duty. Further, the employee had followed the City’s policy by reporting his use of medical marijuana to his supervisors and had worked without incident for almost two years. The Board reinstated the employee to his original position as he had demonstrated his ability to function in a safety-sensitive position.
Employers must remember that accommodation of medical marijuana should be approached no differently than any other form of accommodation, particularly when it comes to the use of prescription medication, and that accommodating disability includes accommodating the treatment associated with it.
Best Practices: Importance of Policy and Process
It is crucial to have an accommodation policy and process. Our firm regularly assists employers in drafting policies to protect them as strongly as possible.
In responding to requests for accommodation, employers would be well-advised to adopt the following practice tips:
- Have one process for responding to all requests for accommodation, even those that may seem unconventional. The process should be a two-way dialogue between the employer and the employee (and a three-way dialogue if a union is involved). Maintain communication with the employee throughout the process.
- Do not dismiss any requests out of hand.
- Require appropriate information, including medical documentation if applicable, speaking directly to the employee’s ability to do the job. Do not request specific diagnosis, information irrelevant to job duties, or the entire medical file. Requests for information should be justifiable.
- Research and educate yourself. Work with the employee to understand the needs and limitations, and how the ground intersects with job duties. Do not stereotype.
- Assess whether there is a legitimate need for accommodation.
- Consider options for accommodation. Employees are not entitled to their preferred form of accommodation; employers are entitled to ascertain what options are available, and choose a reasonable option. In considering whether accommodation would cause undue hardship, and in comparing available options, employers can consider the cost, outside sources of funding, and health and safety requirements of the job (if any). Remember, some hardship is acceptable.
- Document all considerations and assessments. This will help prove that you have taken every step up to the point of undue hardship, and as a result, you will be in a much stronger position to defend a discrimination claim.
- If you cannot accommodate without undue hardship, clearly explain this to the employee and be prepared to show why this is the case.
- Maintain confidentiality.
- Monitor and adjust the steps taken, as the employee’s needs or the employer’s circumstances might change over time.
Both parties must remember that the accommodation process is collaborative. As an employer, you must make genuine efforts to assess the need for accommodation and consider options. If you are an employee, you must provide sufficient information to allow the employer to assess the need for accommodation. Case law has demonstrated that an employee’s refusal or failure to participate in the accommodation process will defeat any claim based upon allegations of discrimination. We work with employers and employees during this process and also to address potential claims if the process fails.