Accommodation

The Fundamentals - Accommodation

• Duty to accommodate
• Undue hardship
• What is a bona fide occupational requirement?
• Accommodation process
• Duty to accommodate: Roles and responsibilities
• Accommodation options
• Promising practices

Duty to Accommodate

A meaningful integration of the duty to accommodate into a department's or agency's culture and policies is critical to effective disability management. The duty to accommodate is a legal obligation (pursuant to sections 2 and 15 of the Canadian Human Rights Act) that requires employers to identify and remove barriers that have an adverse impact on employees protected under the Act and to implement measures necessary to allow these employees to perform their duties to the best of their abilities. Management is required to understand and accept the responsibility to:

• Determine what barriers might affect the person requesting the accommodation;
• Explore options for removing these barriers; and
• Ensure that information requests are constructive and respectful of privacy and confidentiality.

Generally, the obligations under the duty to accommodate are as follows:

• Given the circumstances, the employer is expected to identify and arrange for reasonable accommodation in a timely manner. In accommodating an employee or a candidate in a selection process, an employer is required to make adjustments and sometimes bear some costs and disruptions to operations (up to undue hardship).
• The employee is expected to fully cooperate in the effort to find a reasonable accommodation, while recognizing that the preferred accommodation may not be possible.
• The union is obliged to cooperate with the employer in finding reasonable accommodation for the employee, where applicable.
• All accommodations are to protect the right for privacy and confidentiality while respecting the dignity, individuality and self-esteem of the employee. All work assigned must be meaningful, productive and have value to the department/agency and the employee.

Understanding the Type of Accommodation Required

• A request for accommodation need not be in writing but should be communicated as clearly and specifically as possible.
• A manager must be aware of the employee's needs, accommodation options and planning resources that are available.
• Accommodation will normally involve the coordination of activities such as assessment and purchase of adaptive equipment as well as workplace adjustments. When more complex and long-term accommodation is required, an accommodation plan will be key. Such a plan should outline:
  • The parties involved (manager and employee) and their responsibility to maintain ongoing communication in the method preferred; and
  • Regular updates regarding health status and when it may be safe and timely to return to work.

Undue Hardship

Undue hardship describes the limit of an employer's obligation to accommodate an employee. It is reached when factors such as safety, health or cost make the employer's burden in accommodating an employee too high. The point of undue hardship is unique in each situation and should be assessed individually. Employers are expected to exhaust all reasonable possibilities for accommodation and demonstrate that they have followed a process (Accommodation Process) before they can claim undue hardship. In some instances, bona fide occupational requirements may prevent accommodation, as it would cause undue hardship. Immediate managers are not to make this determination without consulting their Labour Relations unit.

Employees represented by a union who are denied accommodation can file a grievance under an existing collective agreement. Workers can file a complaint with the Canadian Human Rights Commission whether or not they are represented by a union. Complaints can be made in relation to any aspect of employment, including pre-employment testing, the working environment, training and promotions. For more information, please refer to section 6.3 of Managing for Wellness: Disability Management Handbook for Managers in the Federal Public Service.

Unrepresented and excluded employees have the right to file a grievance under the Public Service Labour Relations Act grievance procedure. They may also file a complaint under the Canadian Human Rights Act.

What Is a Bona Fide Occupational Requirement?

A bona fide occupational requirement is a standard or rule that is integral to carrying out the functions of a specific position.  For a standard to be considered a bona fide occupational requirement, an employer has to establish that any accommodation or changes to the standard would create undue hardship.

There is three-step process to determine when a specific accommodation creates an undue hardship and is a bona fide occupational requirement. The three-step process encourages the development of standards that are free from discriminatory barriers and that accommodate the contributions of all employees.

Accommodation Process

Unlike the return-to-work process, which is transitional and for a fixed duration, accommodation is an ongoing process that requires regular monitoring and review. Privacy requirements are respected in all cases, especially as related to the sharing of medical information. The diagram below assumes that the Canada Labour Code, Part II, has been observed and that the place of employment is barrier-free.

Figure 1: Accommodation Process Diagram - Text version

This diagram is a flowchart that describes the steps and actions managers should take to ensure employees are receiving the necessary accommodation to support their abilities, functional limitations or disabilities. Steps and actions in providing accommodation are as follows:

• To recognize the need for accommodation, the employee or candidate should request the accommodation, or the employer should identify the need for accommodation.
• To gather relevant information, the employee should be asked for input regarding options, the employer and employee should review for understanding, and accommodation requirements should be evaluated.
• If implementing the accommodation is simple, make the offer of accommodation. If the accommodation is complex, involve a third party if necessary, make an informed decision, and make the offer of accommodation.
• If the accommodation is acceptable, implement the accommodation. If it is not acceptable, pursue an internal recourse such as arbitration or other recourse.
• Once the accommodation has been found to be acceptable and has been implemented, monitor and review the accommodation, i.e., follow up and keep records through employer–employee cooperation.
• Review the accommodation periodically to ensure satisfactory accommodation.
• If the accommodation is unsatisfactory, repeat the process.

• Recognize the need for accommodation:
  • Employee (or employment candidate) requests accommodation.
  • Employer has an obligation to recognize and explore conditions that may require accommodation; an employer has an obligation to initiate a discussion about accommodation when aware that an employee may have a need that has not been expressed.
• Gather information and assess needs:
  • Options are discussed by the employee and the employer.
  • Simple accommodation requests may be agreed to between manager and employee.
  • The following are possible in complex cases:
    • An accommodation needs assessment and an internal review of the assessment; and
    • Consideration of a third-party assessment (where applicable).
• Offer of accommodation is made based on available information.
• Accommodation provided is accepted and then implemented:
  • Monitoring and reviewing the accommodation: An employer's responsibilities to accommodate employees (and employment candidates) with such things as physical access, adapted facilities, or food allergies require a system of monitoring and review. Accommodations that are not satisfactoryrequire adjustments and modifications based on the requirements from the recommendations of the assessment. A reassessment may be required, and additional experts or stakeholders may need to be consulted.
• Accommodation denied:
  • An employee who is denied accommodation in the context of a layoff situation or a staffing process may file a complaint under the Public Service Employment Act
  • Represented employees who are denied accommodation on the basis of one of the 11 grounds of discrimination may also file a grievance under an existing collective agreement.
  • Unrepresented or excluded employees who are denied accommodation may file a grievance under the Public Service Labour Relations Act grievance procedure.
  • All employees, represented or not, may file a complaint under the Canadian Human Rights Act. Complaints can be made in relation to any aspect of employment, including pre-employment testing, the working environment, training or promotions.

The employer and employee are responsible for cooperating in trying to determine and implement accommodation. Reasonable accommodation proposed by a manager may not be the employee's preferred option, but it should represent both the manager's provision of an appropriate accommodation solution and the employee's cooperation and collaboration to find accommodation.

For more information refer to section 6.0 – Accommodation - Managing for Wellness - Disability Management Handbook for Managers in the Federal Public Service

• Prevention
• Support for recovery
• Case management
• Remain-at-work plan
• Return-to-work plan