As employers begin to turn their minds to reopening, it is an ideal time to revisit some basics of employment law best practices. This week, we'll review another key issue for employers – the duty to accommodate.
Most employers are well aware of their duty under the Ontario Human Rights Code ("OHRC") to accommodate protected characteristics of employees, such as disability or family status, to the point of undue hardship. However, any employer who has been involved in the accommodation process knows that it can be difficult to successfully navigate.
One area where employers often fall short is the procedural duty to accommodate. In Ontario, a procedural failure on the part of the employer can lead to a finding that there has been a breach of the OHRC, even if there was no substantive accommodation that could have been provided short of undue hardship. In order to satisfy this procedural obligation, employers are required to inquire into an employee's accommodation needs, obtain any relevant documentation, and conduct an individualized assessment of possible accommodation measures to address those needs. Applying a "one size fits all" approach to accommodation is not sufficient. In a unionized workplace, it may be appropriate to involve the union in assessing available accommodations and seek their input as to possible alternatives.
The substantive component to accommodation considers the reasonableness of the accommodation offered. It is the duty of the employer to demonstrate what considerations, assessments, and steps were undertaken to accommodate the employee to the point of undue hardship. Importantly, employers are not required provide employees with a perfect accommodation, or even with their preferred accommodation, they are only required to provide an accommodation that is appropriate in the circumstances.
Undue hardship is a legitimate defense that an employer may raise to justify why it was unable to successfully accommodate an employee in the workplace. This standard requires the employer to demonstrate that significant difficulties – beyond mere inconvenience – would result if it had to accommodate the employee. Common factors to determine whether undue hardship exists include safety, the size and nature of the employer's operations, and the cost of the accommodation. Again, an individualized approach is key in determining whether undue hardship exists in a particular accommodation case!
As more employers begin to transition their employees back into the workplace it is important to keep these obligations in mind, especially if individuals express that they are unwilling or unable to return. While a general fear of contracting COVID-19 will not typically justify a refusal to return to work, employers should be mindful that a refusal may trigger the duty to accommodate if protected characteristics are at play – for example, an employee with a mental health disability may require accommodation in the form of a graduated return to work program. Another important area that employers will need to address is the accommodation of childcare needs as parents of young children struggle to find safe and reliable childcare as our economy slowly re-opens with limited daycare and summer camp resources. Employers will need to be flexible in addressing childcare concerns in the coming months.
Of course, employees must do their part in the accommodation process as well! The timely provision of appropriate information and, if necessary, medical documentation is an integral element of the accommodation process. An employee's failure to participate in the accommodation process may ultimately amount to job abandonment; however, that approach should only be taken after careful consideration, and, ideally, consultation with counsel.
Originally published 11 June, 2020
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.