As an employer, it is critical that you are aware of your obligations to your employees to avoid potential human rights or wrongful termination lawsuits by current or former employees on the basis of discrimination.
One important aspect of your obligations to your employees is ensuring that you are properly addressing any requests for accommodation in the workplace.
When does the Duty to Accommodate Apply?
Canadian law prohibits discrimination based on any of the grounds identified in the Canadian Human Rights Act (CHRA) and, in Ontario, the Human Rights Code (OHRC). These protected grounds include disability, sex, race, creed, family status, and age. Employers must accommodate employees who fall into the protected groups up to the point of undue hardship, taking into account factors like health, safety, and cost to the employer.
In the employment context, the duty to accommodate is typically applied to situations involving disabilities. However, it often also applies to other situations, such as sex (pregnant women), age (older workers), or creed (employees with religious needs). The duty to accommodate is not meant to unfairly cater to employee preferences; it is intended to remove discriminatory barriers related to the prohibited grounds of discrimination without causing undue hardship to the employer.
What is Undue Hardship?
The ultimate issue related to the duty to accommodate is whether the employer has shown that accommodation has been provided up to the point of undue hardship.
There is no set formula for determining what constitutes undue hardship. To help determine what level of accommodation that would cause undue hardship, employers should consider health, safety, cost, collective agreements, the interchangeability of their workforce and facilities, and the operational requirements of their workplace.
How Far Do I Have to go to Accommodate an Employee?
The law guarantees equal treatment to all persons capable of performing the essential duties or requirements of a job. As an employer, you should not assume that an employee cannot perform the essential duties of the job without actually testing that person’s ability.
The type of accommodation required will depend on the circumstances of the particular situation. In some situations, accommodation may entail altering the employee’s job responsibilities; in other circumstances, the accommodation may involve physical changes to the work environment or exceptions to non-essential workplace policies. Some examples of accommodation include:
Building a wheelchair access ramp;
Flexibility in work hours or break times;
Allowing an employee to wear a hijab even though the employer wants all employees to wear the same uniform; or
Allowing an employee to not work on certain religious holidays.
What Standards can Employers Set?
In some cases, discrimination may be permitted where there is a “bona fide occupational requirement” related to the ability to perform a particular task or requirement. In these cases, discrimination will not be in violation of the law if the employer can prove that the ground for discrimination is a genuine requirement of the job, and that the inability to meet such a requirement cannot be reasonably accommodated. For example, a bona fide occupational requirement may relate to policies that ensure the safety of the worker, co-workers, or the public.
The good news is, although the duty to accommodate may require employers to consider modifying performance standards or workplace policies, this does not preclude you from enforcing policies or standards that are unrelated to the protected grounds of discrimination. An employer is entitled to a productive employee and to develop standards that maximize organizational goals. For example, you are not required to tolerate poor performance or unpredictable attendance. Employees, once accommodated, are expected to meet their employer’s occupational requirements and standards.