Duty to Accommodate

The Duty to Accommodate Disabled Employees

Imagine working diligently at your job when an unexpected injury disrupts your daily routine. Now, think about how your employer should handle your return to work. This scenario raises critical questions about the legal obligations employers have when it comes to accommodating the needs of disabled employees. 

Understanding the Duty to Accommodate:

In Canada, employers have a legal responsibility to accommodate the needs of disabled employees, up to the point of undue hardship.  This duty is deeply rooted in provincial and federal human rights legislation, including the Ontario Human Rights Code and the Canadian Human Rights Act. These laws play a vital role in ensuring fairness and equal opportunities in the workplace.

The duty to accommodate arises when an employee faces a disability-related barrier that hinders their ability to perform their job effectively. Common examples of the duty to accommodate include: 

• Providing modified work or light duties to an employee with a physical disability
• Allowing an employee to take time off work for a mental health disability.

Undue Hardship:

The duty to accommodate is not absolute; it has limitations. Employers are only required to accommodate employees up to the point of undue hardship. However, this is a very high threshold for employers to meet. For employers to claim that they cannot accommodate their employees, they must prove that the accommodation would cause significant financial or operational hardship to the company. 

British Columbia (Public Service Employee Relations Commission) v. BCGSEU (“Meiorin”), [1999] 3 SCR 3:

In the case of British Columbia (Public Service Employee Relations Commission) v. BCGSEU (“Meiorin”), [1999] 3 SCR 3, the Supreme Court of Canada provided an important legal precedent regarding the concept of “undue hardship” in the context of employment discrimination. 

In that case, Giselle Meiorin, a female firefighter in British Columbia failed a mandatory fitness test that had been designed for men. Meiorin argued that the test discriminated against women and violated her rights under the Canadian Human Rights Act. 

The central issue was whether the fitness test was a bona fide occupational requirement (BFOR) and whether the government employer could establish that it met the standard of “reasonable accommodation” without causing undue hardship.

The Supreme Court of Canada clarified the legal framework for assessing reasonable accommodation and undue hardship in cases of employment discrimination. Key points include:  

1. Bona Fide Occupational Requirement (BFOR): The court recognized that employers may establish certain job requirements that are necessary for the safe and efficient operation of the workplace. These requirements are known as BFORs and can justify prima facie discriminatory practices.
2. Reasonable Accommodation: The court held that employers have a duty to accommodate employees to the point of undue hardship when they have discriminatory requirements. This means making reasonable adjustments to accommodate an employee’s individual characteristics or needs, such as disabilities or sex.
3. Undue Hardship: To claim undue hardship, employers must demonstrate that they have made every reasonable effort to accommodate employees without causing excessive disruption or expense. Factors considered in assessing undue hardship include financial cost, safety concerns, and the impact on the employer’s operations.
4. Proportionality: The court emphasized that any requirement or standard must be proportionate to its purpose. In the Meiorin case, the fitness test was found to be overly stringent and not sufficiently tailored to the actual job requirements of a firefighter, which was deemed disproportionate to its intended goal.

The duty to accommodate is a fundamental aspect of ensuring fairness and inclusivity in the workplace. Employers play a crucial role in this process, and it is essential that they meet their obligations under human rights legislation.

The unfortunate reality is that some employers fail to comply with their obligations, without fair reason.  

If you are an employee who requires accommodation in the workplace, contact Lecker & Associates or call us at 416.223.5391 today. We have over 40 years of experience protecting employee rights and representing employees in employment-related disability matters.