Canada: Accommodating Employee Disability - Not All That Painful

Last Updated: September 11 2014
Article by Carissa Tanzola

It can be challenging for an employer to navigate the obstacles presented when attempting to accommodate an employee with a physical or mental disability. Unfortunately, because the legal obligation to accommodate necessitates an individualized approach there is no "one size fits all" formula. However, the process doesn't have to be painful.

Understand the Legal Landscape

Whether the disability is as a result of a workplace accident or a weekend football mishap - the duty to accommodate remains the same.

A. The Human Rights Code – The Most Inclusive Approach

The Ontario Human Rights Code ("Code") requires an employer to accommodate an employee with a disability "to the point of undue hardship." This means considering the employee's restrictions and limitations and either modifying the employee's current job or finding other work as close as possible to th e employee's pre-injury job, within the scope of the employee's abilities.

There are four fundamental steps to accommodation:

1. Consider whether a disability exists.

"Disability" is defined broadly under the Code to include any degree of:

  • physical disability, infirmity, malformation or disfigurement caused by an injury or birth defect or illness
  • mental impairment or developmental disability
  • learning disability or mental disorder, or
  • injury or disability for which benefits are claimed or received under the Workplace Safety and insurance Act ("Act")

The definition of "disability" does not consider where the injury or illness occurred; only that it exists. A common cold or stress (which does not otherwise trigger a disability, such as depression or anxiety) is not a "disability" under the Code.

2. Complete a procedural analysis.

In most cases, an employer becomes aware an employee has a disability when the employee asks for accommodation. However, in some cases it may be incumbent on the employer to make a proactive inquiry. For example, where the employer observes a dramatic change in the employee's behaviour causing a disruption in the workplace, the employer may need to inquire whether the employee requires accommodation.

Once it has been established that an employee has a disability, the employer must consider what can be done to facilitate the employee's continued participation in the workplace. This procedural analysis typically begins with an inquiry into the nature of the disability ( e.g. physical or mental), the employee's limitations (e.g. no lifting of more than 10lbs) and for how long the limitations - and thus the need for accommodation - may last.

Employers are entitled to ask for and receive timely, accurate and relevant medical in formation. A doctor's note that simply says "patient cannot return to work for 3 months" is not sufficient, nor can an employee refuse to provide information about his limitations on the grounds the information has already been provided to the WSIB or to a private insurance carrier. In fact, decisions made by the WSIB or a private insurance carrier are largely irrelevant to an employer's duty to accommodate.

Where the information from the employee's doctor is insufficient, an employer might consider retaining the services of its own doctor or asking the employee to attend an independent medical examination paid for by the employer. When all else fails, an on-going failure to cooperate can lead to discipline or the denial of the accommodation request.

If it is not possible to modify the employee's regular job, other similar jobs at the same wage rate must be considered. The employer must also explore if the tasks of multiple positions can be combined or bundled. In essence, the duty to accommodate requires the employer to offer work that is as similar as possible to the employee's pre-injury job.

Important to note - an employer is not required to bump other employees out of their positions or create an new position if that position is not necessary in the workplace. In a unionized workplace, if suitable accommodation does not exist within the employee's bargaining unit the employer is required to look outside the unit, and the union is required to cooperate in the process. However, accommodation outside of an employee's bargaining unit is generally viewed as a "last resort".

3. Complete a substantive analysis.

Although closely related to the procedural analysis, the substantive analysis considers the specific modifications that may be required so the employee can fully participate in the workplace. This may include decreased productivity standards, reduced hours, increased breaks and the ability to sit and stand as needed. To this end, while an employee's input into the accommodation process is important, the employee does not have the right to insist on a more favourable position, and any absence resulting from an employee's refusal to work in an otherwise suitable position is culpable. Finally, unless the cost of a modification will significantly impact the viability of a business, the cost of accommodation will not be accepted as "undue hardship".

4. Follow-up regularly.

Once an accommodation plan has been established, the employer should remain in regular contact with the employee and request updated medical information and reports to ensure that as the employee's disability changes (if at all) the accommodation plan is amended accordingly. Ideally, the employee should be working his way back to his pre-injury position.

B. The Workplace Safety and Insurance Act – Not an Alternative to the Code

Where an employee is injured in the course of employment, and the employer is subject to the obligations of the Act (the majority of employers are required, or opt, to have coverage), the Act requires the employer to provide "suitable modified duties". This standard is not as high as the "duty to accommodate" under by the Code.

Usually, "suitable modified duties" means adjusting hours of work, productivity standards and exploring other positions on the same shift at the same wage rate. The Workplace Safety and Insurance Board ("WSIB") does not generally require an employer to make costly modifications to the workplace or to bundle the tasks of multiple positions in order to meet its obligations under the Act.

Where both the Code and Act apply, it is advisable that an employer seek to accommodate the employee's disability to the point of undue hardship – in other words, the higher of the two standards. Failure to do so can expose the employer to whatever costs are associated with an employee receiving WSIB benefits and any liability arising out of a breach of the Code.

Practical Tips

The duty to accommodate, while at times daunting, can be managed to the benefit of both the employer and employee. To simplify the process remember the following tips:

  1. Each case must be evaluated and analyzed on its own merits.
  2. Accommodate to the point of undue hardship for all cases of disability, regardless whether the WSIB is involved.
  3. Consider every suitable or potentially suitable workplace position, including bundled tasks.
  4. Don't rely on the decisions of the WSIB or an insurance carrier.
  5. Continue to seek out updated, meaningful medical information.
  6. Work with the employee (and union), to explore and implement appropriate accommodation.
  7. When in doubt, reach out to experienced employment counsel who will help you navigate through the process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions