Canada: The Duty To Accommodate Challenge

Dealing with employee disabilities and understanding the extent of the employer’s obligation to accommodate disabled employees is one of the more challenging workplace issues facing employers today. Recent Supreme Court of Canada decisions have sought to clarify the duty to accommodate employees with disabilities. In response to these decisions, the Ontario Human Rights Commission released new policies and guidelines in March 2001 to help employers identify and fulfil their obligation to accommodate disabilities in the workplace.

The guidelines seek to clarify the definition of handicap under the Human Rights Code. Developmental disabilities, learning disabilities, environmental sensitivities and even minor illnesses are considered a "handicap" where an individual can demonstrate that they were treated unfairly because of the perception of a disability. Once an employee has established that he or she is handicapped within the meaning of the Human Rights Code, an employer has an obligation to accommodate that handicap to the point of undue hardship. Recent court decisions have emphasized that employees must be considered, assessed and accommodated on an individual basis. In determining whether an employer has met its obligation to accommodate, the courts and the Commission will ask the following questions:

• Were alternative approaches that do not have a discriminatory effect investigated?

• Why were viable alternatives that would accommodate an individual not implemented?

• Can the employer meet its legitimate objectives in a less discriminatory manner?

• Is the standard, policy, practice or rule properly designed to ensure the desired qualification is met without placing undue burden on the affected employees?

• Have other parties obligated to assist in the search for accommodation fulfilled their roles?

Employers, employees and unions all have responsibilities in the accommodation process. Initially, an employee must advise the employer that he/she has a disability, must be prepared to answer questions or provide appropriate medical information in order to assist in the process, and co-operate in workplace initiatives to accommodate the employee. The employer is obligated to obtain expert opinions where necessary, participate in the investigation of alternative solutions, maintain confidentiality, grant accommodation requests in a timely manner and bear the cost of any required medical information. Unions and other professional associations are also obligated to take an active role in the accommodation and not impede the process.

In determining whether an employer’s accommodation of a disability will create undue hardship, the Commission will consider only those factors set out in the Human Rights Code: cost, any outside sources of funding and any health and safety requirements. Cost will be considered only where it is quantifiable, shown to be related to the accommodation and so substantial that it would alter the essential nature of the employer’s business or affect its viability. Business inconvenience, employee morale, customer preference and collective agreement barriers have all been rejected by the Commission as appropriate considerations in determining if accommodation will create undue hardship. However, it is noted that the courts and arbitrators have shown a greater willingness to at least consider such factors.

The recent court decisions and the new guidelines emphasize the need for employers to consider the appropriate method of dealing with employees with disabilities. Maintaining human dignity and eliminating barriers to employment for persons with handicaps remain the cornerstone of the accommodation process. A decision that it is not possible to accommodate a handicap cannot be made without an exhaustive analysis of possible forms of accommodation, the cost to be borne and the real health and safety risks associated with the accommodation. Employers should seek appropriate advice from outside agencies or professionals before concluding that an employee’s disability cannot be accommodated.

Finally, employers should take note of recent comments by the Commission’s Chief Commissioner Keith Norton at the time that the Guidelines were released. In response to the growing number of complaints filed with the Commission alleging discrimination on the basis of disability, Mr. Norton warned that "the duty to accommodate is not optional…we have made it clear that meeting the special needs of persons with disabilities is a legal obligation. It is not some sort of voluntary program".

The new Policy and Guidelines can be accessed from our website (www.ccaemployerlaw.com) which provides a link to the Commission’s website.