A duty to accommodate exists for any protected human rights ground under the Ontario Human Rights Code. The specific protected grounds include: age, ethnicity, race, religion, disability, family status, gender, sexual orientation. Some examples of accommodation could include, not working on a religious holiday, taking time off due to medical appointments for an illness, flexible work hours due to childcare, using assistive devices in the workplaces.
How do I know if I need to be Accommodated?
If you have received a diagnosis or you are struggling with an illness that is impacting your ability to do your job, it is worthwhile to speak to your employer about being accommodated. This includes mental health, physical health diagnoses.
What sorts of Accommodations are Available?
Even if you are diagnosed with the same condition, different employees may need different accommodations depending on the impact or severity of an illness. Some types of accommodations may include:
- Flexibility in work hours
- Allowing an employee to attend medical or therapy appointments during work hours
- Time off for religious holidays
- Being assigned to an alternative position
- Being seated close to a bathroom
- Alternative uniform
- Using assistive devices
What should I Expect from an Employer once I have asked for an Accommodation?
Your employer may ask for further medical documentation about the disability. They should accept the accommodation request and take steps to accommodate you. Your request and all documentation should be kept confidential. An employer is only allowed to ask for medically relevant documentation for the specific accommodation need. They should also respond in a time-sensitive manner.[1]
How is Discrimination Established?
In British Columbia (Public Service Employee Relations Commission) v. BCGSEU,[2] a three-step test was established that should be adopted for determining whether an employer has satisfied a bona fide occupational requirement (BFOR). 1. The employer must show that the standard was rationally connected to the job. 2. The standard must be necessary to fulfill a work-related purpose. 3. The employer must establish that the standard is necessary for the work-related purpose. To show that the standard is reasonably necessary, it must demonstrate that it is impossible to accommodate the individual without undue hardship.
At What Point is Undue Hardship Reached?
Undue hardship is determined on a case by case, individual basis. Some factors that are used to determine undue hardship were outlined in the case of Central Alberta Dairy Pool v. Alberta (Human Rights Commission).[3] In this case it was found that cost, interchangeability of the work force, and the size of the employer all affect the assessment of undue hardship. Additionally, where safety is at issue, it will affect the analysis.
Some amount of cost to the employer is acceptable and is expected.
What is a Procedural Duty to Accommodate?
Once you have requested an accommodation, it is up to the employer to obtain all relevant information about the disability including information about the current medical condition, prognosis for recovery, ability to perform job duties, and capability for alternate work.[4]
If you think that your accommodation request has not been met, or that you have been discriminated against for your disability, contact Marshall Law. If you think that you have been terminated due to your disability, it is also worthwhile to speak to one of our lawyers.
[1] Human Rights Legal Support Centre. “Understanding the Duty to Accommodate” < https://hrlsc.on.ca/how-to-guides/understanding-the-duty-to-accommodate/>
[2] British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC) <https://canlii.ca/t/1fqk1>
[3] Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC) < https://canlii.ca/t/1fsv9>
[4] Adga Group Consultants Inc. v. Lane, 2008 CanLII 39605 <https://canlii.ca/t/205dq>