Making workplace accommodation work

The duty to accommodate

Under the Ontario Human Rights Code, employers must accommodate employees with disabilities up to the point of undue hardship. The duty covers the whole working relationship, from hiring to return to work. Federally regulated employers, such as banks, airlines and telecoms, have the same duty under the Canadian Human Rights Act instead.

The Ontario Human Rights Commission (OHRC) describes three principles behind accommodation: respect for dignity, individualization, and integration and full participation. In practice, that means working with the person, looking at their specific needs rather than a label, and removing barriers rather than setting people apart.

Undue hardship is a high bar. The Code allows only three considerations: cost, outside sources of funding, and health and safety requirements. Business inconvenience, employee morale and customer preferences don't count, and a collective agreement can't block an accommodation. An employer claiming undue hardship needs objective evidence, not assumptions.

The duty has two parts. The procedural duty is about the process: inquiring, assessing and considering options. The substantive duty is about the accommodation itself. Falling short on either one is a failure to accommodate. Employers also have a duty to inquire if they think someone may need accommodation, even without a formal request.

Where the AODA fits

The employment standard in the AODA's Integrated Accessibility Standards Regulation adds process requirements. It doesn't replace the Human Rights Code.

Where it applies, the written accommodation plan process must cover how the employee takes part, how they're assessed as an individual, and how they can ask for a union or workplace representative to be involved. It must also cover outside expert advice at the employer's cost, privacy, how often plans are reviewed, how reasons are given if a plan is denied, and providing the plan in a format that works for the employee.

A good accommodation process

1. Recognize the need. Accept requests in good faith. They don't need special wording. Putting a request in writing helps, but it shouldn't be the only way to ask.
2. Understand the functional needs. Focus on what the person needs to do the job, not on their diagnosis.
3. Explore options together. Involve the employee and, if they want, a union or workplace representative. Consider more than one option.
4. Get expert input when it's needed. Not as a routine step, but when needs are complex or unclear. The employer pays.
5. Decide, document and act promptly. If the best solution will take time, put an interim accommodation in place.
6. Review and adjust. Set a review date, and revisit the plan when the job, location or the person's needs change.

If two options meet the person's needs equally well, the employer can choose the less expensive or less disruptive one. If a request is denied, explain why, clearly and respectfully.

Privacy and medical information

Employers often ask for more than they need. According to the OHRC, an employer can generally ask for information about:

• whether the person has a disability
• the limitations or needs that come from it
• whether they can do the essential duties of the job, with or without accommodation
• the type of accommodation that may help
• for someone on leave, regular updates on when they expect to return

Employers generally aren't entitled to a diagnosis, cause, symptoms or treatment, unless they clearly relate to the accommodation or the person's needs are complex or unclear. Even then, ask for the least intrusive information you need. The OHRC's position is that the employer should pay for the medical notes and assessments it asks for.

Keep medical information separate from personnel files, and share it only with people who need it, often HR rather than the direct supervisor. Share individualized emergency response information only with the employee's consent.

Return to work

Public sector organizations, and businesses and non-profits with 50 or more employees, need a documented return-to-work process for employees who have been absent because of a disability and need accommodation to come back. It must set out the steps the employer will take, and use individual accommodation plans.

This process doesn't replace return-to-work processes under other laws, such as workplace safety and insurance rules after a work-related injury.

Good practice includes staying in touch respectfully during the absence, planning a gradual return where it helps, and checking in after the first few weeks back.

Common pitfalls

• Asking for a diagnosis when functional information would do.
• Waiting for perfect information instead of putting an interim accommodation in place.
• One-size-fits-all solutions based on a condition rather than a person.
• Leaving it all to the supervisor without support, training or a clear process.
• Skipping the process. Not inquiring, documenting or considering options is a failure in itself.
• Setting and forgetting. Plans that are never reviewed stop working.

Sources

• Ontario Human Rights Commission: Policy on ableism and discrimination based on disability
• Ontario Human Rights Commission: Duty to accommodate
• Ontario Human Rights Commission: Undue hardship
• Ontario Human Rights Commission: Policy position on medical documentation for accommodation requests
• Government of Ontario: Accessible workplaces
• Government of Ontario: Integrated Accessibility Standards, O. Reg. 191/11
• Government of Ontario: A guide to the Integrated Accessibility Standards Regulation (PDF)