Creating inclusive and accessible spaces for individuals with disabilities to participate equally in society is the right thing to do and a legal obligation for employers and service providers.
Employers have a duty to accommodate individuals with disabilities. The right for disabled individuals to receive equal treatment and to be accommodated in employment is guaranteed under the Ontario Human Rights Code (the “Code”).
What is a “disability” under the Ontario Human Rights Code?
Disability under the Code is defined broadly and includes physical, mental and learning disabilities, mental disorders, hearing or vision disabilities, epilepsy, mental health disabilities, addictions, and other conditions, both visible and invisible. Individuals can be born with disabilities, disabilities can be caused by an accident or illness or can be developed over time.
What is the duty to accommodate?
Employers have a legal duty to accommodate the needs of people with disabilities. This duty has both a procedural and a substantive component. This means that both the procedure used to assess the accommodation and the actual substance of the accommodation provided is important to fulfill this duty. It is important, even if the employee cannot be substantively accommodated, that the procedural duty is fulfilled by thoroughly investigating the employee’s needs and the possible accommodations, considering all available options, and communicating appropriately with the individual.
However, the duty to accommodate is not absolute. Employers must accommodate to the point of undue hardship. They do not need to provide an accommodation if it would cause undue or excessive hardship, such as onerous costs or health and safety risks. Business interests and inconvenience are not considerations when establishing undue hardship.
Duties in the accommodation process
The accommodation process is inherently collaborative, and employers and employees need to be cooperative, share information, and work together to find potential accommodation solutions. The Ontario Human Rights Commission provides the following guidance:
The employee requesting accommodation must:
● Make their needs known to the best of their ability, ideally in writing;
● Answer questions and provide information about their restrictions and limitations;
● Participate in accommodation discussions; and
● Work with any experts or accommodations providers to manage the accommodation process.
The employer must:
● Accept accommodation requests in good faith, unless there are valid reasons not to;
● Take an active role in investigating possible accommodation solutions;
● Keep records of accommodation requests and actions taken;
● Communicate regularly with the individual regarding the status of their accommodation request;
● Maintain privacy and confidentiality;
● Consult with the individual to determine the most appropriate accommodation; and
● Implement accommodations promptly.
Employees are not entitled to their preferred/perfect method of accommodation. It’s a two-way street and the parties have to work together to create an accommodation plan that works for both parties.
What medical information can be requested for accommodating a disability?
In meeting the duty to accommodate, you can request sufficient medical information to:
● Understand whether the employee has a disability (which therefore triggers the duty to accommodate);
● Understand the functional restrictions or limitations associated with the disability and whether those restrictions or limitations are temporary or permanent; and
● Determine what accommodations may be appropriate in light of the employee’s needs.
In the employment context, this information can be collected in a standardized form, such as a Functional Abilities Form (FAF).
Generally, requests for medical information should be limited to those related to the nature of the limitation or restriction, to assess the individual’s needs. The information requested should be as minimally intrusive as possible, while still allowing the employer to fulfill its duty.
What could an accommodation look like?
Accommodation should always be individualized to the unique needs of the person. Examples of potential accommodation solutions in the employment context:
● Allowing flexibility in job schedules or allowing for additional breaks;
● Providing ergonomic modifications to workstations;
● Modifying job duties or providing additional training; and
● Allowing disability or medical leaves.
Practical takeaways
1) Education: Ensure that staff and managers are aware of the duty to accommodate and know how to report and properly handle accommodation requests. Even better, have policies in place that set out how your organization will handle requests for accommodation from employees.
2) Communication is key: Get accommodation requests in writing, document each step taken in the accommodation process and every option canvassed, and keep the employee in the loop of any expected timelines, decisions, or delays in the accommodation process.
3) Know when to engage counsel: Some accommodation requests will be simple and straightforward: someone asks for a ramp to be installed or a designated accessible parking spot. However, they can quickly become complex, emotional, and costly, and could result in complaints to the Human Rights Tribunal. If you’re unsure how to handle a delicate accommodation process, consult with counsel to ensure you’re doing everything correctly and avoiding future legal headaches.
Lexa Cutler is a lawyer at SpringLaw, a virtual law firm practicing exclusively in the areas of employment, labour, and human rights law. Lexa has experience advising and representing both employers and employees in all aspects of workplace law. She’s well-versed in workplace law, offering creative, empathetic, and efficient solutions to legal challenges for both employers and employees. Lexa’s experience spans human rights issues, wrongful dismissals, health and safety concerns, and WSIB matters. She can be reached at lcutler@springlaw.ca www.springlaw.ca
