Employer’s Duty To Accommodate | Co-Authors Ian Hurley and Bram Lecker

An Employer’s Duty To Accommodate

The human condition is such that anyone can suffer an illness or become disabled at any time.  It can occur suddenly or manifest itself over time. It can impact your life, your employment and in turn, your financial stability. Nobody asks for an illness or disability on purpose. And your employer cannot discriminate against you for something that is beyond your control. That is why Ontario’s Human Rights Code offers employees some protection under these circumstances. When an illness or disability strikes, your employer must make reasonable efforts to ensure you remain employed. This is known as an employer’s duty to accommodate.

What is Duty to Accommodate?

Generally, employees request accommodation after returning from Short Term or Long Term Disability leave based on the advice of a physician. While general guidelines do exist, the type of accommodations requested depend on your individual circumstances. You can seek temporary accommodation that lasts a few weeks to allow you to ease back into your normal duties. If you have suffered a permanent disability, then you could certainly request assignment to a different job, where reasonable. Examples include:

• flexible work schedule and/or reduced hours
• time off for therapy and medical appointments
• modified duties and responsibilities
• transfer to another position
• retraining
• modifying work rules or policies
• ergonomic assessments and modification of the work environment

Duty to Accommodate – Dealing With Your Employer

Following a request for accommodation, your employer may want to assess what is and what may not be possible to provide. They are entitled to receive sufficient notice to pursue this investigation and also to set in place proper accommodation for you. After all, the primary principle of accommodation legislation is to reach a  balance between your rights and that of your employer to operate an effective workplace.

Sometimes, they will ask for medical proof, especially if your condition is not obviously apparent. When this occurs, recognize that they cannot ask for a diagnosis or disclosure of your medical file. Your physician may simply provide details of your functional limitations along with an estimate of how long you require the accommodation for. This information should be shared with only those individuals who need to know.  And most important of all, they must respect your privacy and follow federal and provincial privacy legislation, including PIPEDA (Personal Information Protection and Electronic Documents Act).

Can Your Employer Refuse To Accommodate?

The Employer’s Duty To Accommodate is not always a welcome prospect in all workplaces. There are those employers who simply do not care for unproductive employees, no matter what the situation.  Accommodating ill or disabled employees can add costs, cause disruption and affect the processes they have always had in place. And furthermore, if the person who filled in for you is doing a good job, then your request for accommodation will simply be viewed as additional aggravation.

When you place a request for accommodation accompanied by proper documentation from your medical team, your employer must provide the accommodation unless they can prove it would cause them undue hardship. And the courts set the bar very high for defining this hardship.  A declaration of the costs being too high or it presenting a risk to health and safety does not legally cut it. Your employer must provide substantial documented evidence to support those statements.

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