Duty to Accommodate
Accommodation is the adjustment of a rule, practice, condition, or requirement to consider the specific needs of an individual or group of individuals with one or more of the protected characteristics in the Human Rights Act.
Employers are responsible for providing accommodations to employees with disabilities. An employer can request medical information from an employee to determine what is required for an accommodation. Employers can ask if the accommodation is related to a disability, the prognosis, and for particulars of what kind of accommodation is required. The employee is responsible for cooperating with reasonable requests for medical information.
The employer has a duty to accommodate to the point of “undue hardship”. Factors that can be used in determining whether the accommodation would pose an undue hardship are employee and customer safety, financial cost, interchangeability of the workforce and facilities, disruption of a collective agreement, disruption of services to the public, the morale of other employees, and the size of the employer’s operation.
Because these obligations are very specific to the individual organization and to the individual(s) requesting the accommodation, you may wish to seek legal advice, or contact the Commission.
Criteria to consider when assessing an accommodation is based on Canadian human rights case law and is known as The Meiorin Test. The Meiorin Test considers the following.
If prima facie discrimination exists, the employer/service provider must show its action/policy/practice is:
- rationally connected to the job function being performed.
- adopted in good faith.
- modifying the action would cause undue hardship
The employee, like the employer, has a duty to participate in the accommodation process. The employee should:
- Advise the employer of a disability (or other protected characteristic requiring accommodation).
- Notify employer of specific needs in writing if possible.
- Answer questions and provide relevant medical information requested.
- Discuss solutions with employer.
- Cooperate with experts to design accommodation.
- Meet agreed performance standards when accommodation is made.
Access to Services
While most inquiries received by the Commission related to Duty to Accommodate concern an employee-employer relationship, the Duty to Accommodate extends to accessing services such as those offered in retail, healthcare, and education.