The Duty to Accommodate Disabilities in the Workplace: A Step-by-Step Guide
The duty to accommodate a disability may feel like a burden to some employers. It prevents them from applying a one-size-fits-all approach to employees and the workplace. However, with a better understanding of the duty and a framework for approaching accommodation requests, employers may find the process clearer, more predictable, and far less burdensome than anticipated.
What is an employer’s duty to accommodate an employee’s disability?
Employers have a duty "to accommodate the needs of people with disabilities who are adversely affected by a requirement, rule or standard” in the workplace.[i] This duty requires employers to adjust a role, policy, or workspace if doing so will permit the employee to work despite a disability. Common accommodations include time off from work due to a serious illness, restricted physical duties after an injury, a temporary role during a mental health episode, or access to a certain office chair or other equipment due to a chronic pain issue.
The duty to accommodate is not without limits. An employer is not required to make adjustments that are unrelated to a disability or that would cause undue hardship.
Steps to accommodation at work
The duty to accommodate is a process-based one. It cannot be completed in a vacuum. It requires engagement with the employee, third-party (medical) support, and brainstorming about the practical impacts/challenges of various options.
Step 1 - Meet with the employee: Discussing the concerns of the employee and the employer is a key first step. This discussion allows the employer to understand the employee’s perspective and challenges and can minimize issues caused by assumptions or biases about what the employee is experiencing.
Step 2 - Identify if a (possible) disability exists: “Disability” is a broad term that includes physical, mental, and cognitive illnesses or injuries. The HRTO has identified some issues that are not considered disabilities – e.g. temporary illnesses like the flu. The duty to accommodate does not apply if there is no disability, though the employer may choose to adjust gratuitously.
Step 3 - Determine if there is an adverse effect on the employee: An adverse effect occurs when a rule, requirement, or expectation negatively impacts an employee because of a disability. Examples include a warehouse employee who cannot lift items over their shoulders due to a back injury or a manager who cannot meet a work from office obligation because of a mental illness. These employees would have to take time off work or be subject to discipline if they were required to complete the black-letter obligations of their roles, so there is an adverse effect.
Step 4 - Engage meaningfully in the accommodation process: Once an adverse effect is identified, both parties have responsibilities. The employer and employee must engage in the process in good faith. The employer must consider reasonable accommodation options and take a flexible, bespoke approach in doing so. The employee must provide appropriate supporting information, including from their doctor, as described below. Accommodation is often described in the case law as a two-way street.
Step 5 - Consider possible accommodations (the procedural component): We describe this as the “showing the math” portion of the accommodation process. Employers must review and consider possible accommodations, including those endorsed by the employer’s doctor. The duty is to provide reasonable accommodation, even if it is not the employee’s preferred solution. Reasonable accommodation balances the employee’s needs, operational requirements, health and safety considerations, and the impact on the workplace
Step 6 - Request medical and third-party support when necessary: Medical documentation can be an important part of the accommodation process, but it is not automatic and must be handled carefully. If the disability is not in dispute or temporary, we generally do not recommend seeking a doctor’s note. When a doctor’s input would assist the parties in assessing the required accommodation, it is usually preferable to engage a third party (such as an STD administrator or independent assessor). Alternatively, employers can provide a list of questions or a form for a doctor to fill out to ensure appropriate functional information is provided, such as the type of restrictions, the expected durations, alternative ways to accommodate, and safety issues. In most Canadian jurisdictions, an employer cannot seek details of a diagnosis, medications, treatment, or other personal health information. Whether the employer reviews the medical information directly or through a third party, it must consider and store that information confidentially.
Step 7 - Engage with relevant workplace participants: Implicit in the use of “relevant” is that not all workplace parties have to be consulted. For example, co-workers in the same role do not need to chime in on whether they believe the accommodation is fair or not. However, it is reasonable to check in with the manager about whether the accommodations can be implemented safely and what other adjustments have to be made to ensure that the employees’ duties are fulfilled.
Step 8 - Understand the limits of “undue hardship”: The duty to accommodate ends when implementing it would constitute undue hardship. Hardship that is not “undue” is irrelevant to the accommodation process. In Ontario, legislation and case law confirm that only three factors can be considered: cost; outside sources of funding; and health and safety requirements. This means that other common considerations raised by employers, such as the impact on other employees and the preferences of customers or the business itself, are not relevant.[ii] A finding that an employer is not required to accommodate because of undue hardship is rare, so any claims that this threshold has been reached should be validated by an employment lawyer.
Final Step - Develop an individualized accommodation plan (the substantive component): Once appropriate accommodations are identified, an employer should prepare an individualized accommodation plan that clearly sets out what adjustments will be implemented, timelines, and responsibilities. Accommodation is not static. They may change over time and can change (or be eliminated) as circumstances or functional limitations change.
Easing the perceived “burden” of the accommodation process
When an employer receives an accommodation request and has a knee-jerk reaction that the request is merely disruptive or unfair, we often find that the concerns are rooted in a lack of familiarity with the process. Following the above steps allows employers to understand the need for accommodation, encourage collaboration, and identify workable solutions, while also sifting out baseless requests.
Jennifer Heath and Patrizia Piccolo
[i] Cited from the Ontario Human Rights Commission’s policy on ableism and discrimination based on disability. While the references in this blog are largely based on guidance and provincial legislation in Ontario, they are largely appliable to other provinces and federally-regulated workplaces.
[ii] https://www3.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability/9-undue-hardship
