Carolyn Johnston discusses human rights and accommodation including what a request for accommodation is, what common mistakes businesses make in the accommodation process, what are the consequences and what to do to prepare your business for accommodation requests as part of the Torkin Manes LegalPoint Video Series.
Q. What is a Request for Accommodation?
If you are a business owner, chances are that you.... or your staff ------have had an employee make the following type of request:
- perhaps a request to take time off work;
- perhaps a request to change hours of work; OR
- perhaps a request to change or modify duties
Now, depending on the employee's reason for making this request, it may be characterized as a REQUEST FOR ACCOMMODATION.
While not an exhaustive list, some common reasons where accommodation applies are:
- a request to take time off work due to illness or injury;
- a request to modify duties due to pregnancy; or
- perhaps a request for a different shift due to family care responsibilities.
You and your staff need to be able to identify these types of requests as Requests for Accommodation.
Once identified properly, your business can work through the accommodation process.
Question: Must I grant all Requests for Accommodation?
As an employer operating a business in Ontario, you have a duty to accommodate an employee's needs with respect to certain grounds.
The duty to accommodate requires that the most appropriate accommodation be determined and be undertaken, short of undue hardship.
When assessing undue hardship, factors include costs, outside sources of funding and health and safety.
It is VERY important in this process to avoid jumping to conclusions.
Even where the best solution might result in undue hardship, there is still a duty to take next-best steps until more ideal ones can be put in place.
Everyone involved must share relevant information and explore solutions together.
In some cases, obtaining further information from an expert is advisable.
Q. What are the common mistakes that businesses make in the accommodation process?
Common (and often costly) mistakes made by businesses in the accommodation process are the following:
- NUMBER 1 - Failing to recognize a particular request from an employee as a request for accommodation. This can happen when front line supervisors are not aware of the organization's duty to accommodate.
- NUMBER 2 - Failing to consider your organization's obligations under the proper legislation. For instance, only considering the Employment Standards Act or the Canada Labour Code and missing altogether the Ontario Human Rights Code or Canadian Human Rights Act.
- NUMBER 3 - Failing to appreciate that the accommodation process applies to all stages of the employment cycle, including recruitment and selection, promotions and transferss
- AND NUMBER 4 - Failing to request relevant information for the purpose of engaging in the accommodation process.
Many employers don't ask for sufficient information while other employers ask for too much information including information which they are not entitled to.
When requesting further information from an employee, it is very important that your organization collect only information that is necessary.
Q. What are the consequences?
The consequences for the employer who has failed in its duty to accommodate can be very costly. In some cases, it may result in a finding that your organization breached applicable human rights legislation with substantial damages being awarded.
Q. What should I do to prepare my business for accommodation requests?
First and foremost, you should take steps to ensure that your organization is familiar with its duty to accommodate. This can be achieved by creating effective policies and a training program for your staff.
Second, if your organization should have questions about its duty to accommodate a particular request, we recommend consulting with a lawyer or other trained professional in this area as early as possible. This should help to avoid an unintentional breach of your legal obligations.
And third, if your organization has already received a complaint related to an alleged failure of its duty to accommodate, we recommend consulting with a lawyer or other trained professional in this area as early as possible to assist with the preparation of your organization's response. It may be the case that early intervention can prevent costly and unnecessary legal proceedings.
If you have questions or would like more information about the accommodation process, feel free to contact me.
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.
