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
Q. What is a Request for
If you are a business owner, chances are that you.... or your
staff ------have had an employee make the following type of
- 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
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
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
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
The duty to accommodate requires that the most appropriate
accommodation be determined and be undertaken, short of undue
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
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
In some cases, obtaining further information from an expert is
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
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
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
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
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.
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