In British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999) (more commonly referred to as Meiorin), the Supreme Court of Canada moved towards a unified approach in the second justification stage of a human rights complaint analysis. The third step of this analysis requires the following:
That the standard is reasonably necessary to the accomplishment of a legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing an undue hardship upon the employer.
Employers may need to take into the account the needs of employees with physical and mental disabilities, older workers, employees with religious needs, pregnant women, and employees with caregiving responsibilities. These scenarios are all protected by human rights legislation, and these employees may require reasonable accommodation in the workplace, up until the point of imposing an undue hardship on an employer.
The concept of “undue hardship” is more simply restated in Moore v. British Columbia (Education), 2012 as being satisfied only if the employer “could not have done anything else reasonable or practical to avoid the negative impact.” In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work.
Reasonable accommodation is exactly that, reasonable. An employer will not be required to; create unnecessary jobs, tolerate an accommodated employee who continues to exhibit substandard work performance, hire an employee unqualified for a position or accommodate persistent absences unrelated to a disability or other prohibited grounds.
The goal of reasonable accommodation is to ensure that an employee who is able to work can do so and ensures that those who are fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship. In order to satisfy reasonable accommodation requirements, employers may be required to treat some employees differently in order to ensure substantive equality. The Supreme Court of Canada has expressed that “due sensitivity to these differences is the key to achieving substantive equality for persons with disabilities.”
Diane Pothier describes a poignant but simple example of reasonable accommodation in her article “Tackling Disability Discrimination at Work: Toward a Systemic Approach,” stating;
Take for example an employment rule that says the job must be performed while standing. The rule is challenged by someone using a wheelchair.
If there is nothing that would prevent an employee to complete this job from a seated position, an employer would not be able to justify this rule as being “reasonably necessary” for the fulfillment of the job. Therefore, it would not constitute “undue hardship” by permitting an employee to complete their work duties from a seated position. This example is simplified, but it helps to illustrate some of the basic concepts at play.
A Dynamic and Flexible Approach
In order to determine reasonable alternatives, employers have been encouraged by Meiorin to engage in an individualized analysis of the employee in question taking into account their individual differences and capabilities. Previously in Nova Scotia (Workers Compensation Board) v. Martin (2003), the Supreme Court of Canada held that “no single accommodation or adaptation can serve the needs of all.”
The duty to accommodate implies that the employer must be flexible in applying its standard if such flexibility enables the employee in question to work and does not cause the employer undue hardship. Appropriate accommodation respects the dignity of the individual, encapsulating autonomy, comfort, and confidentiality, responds to a person’s individualized needs and allows for integration and full participation.
Employers, courts, and tribunals should be innovative yet practical when considering how an employees’ skills, capabilities, and potential contributions can be respected while still accomplishing an employers’ legitimate work-related purpose.
Performing the Reasonable Accommodation Analysis
1.) Whether the accommodation provider investigated alternative approaches that do not have a discriminatory effect;
2.) Reasons why viable alternatives were not put in place;
3.) Ability to have different standards that reflect group or individual differences and capabilities;
4.) Whether the accommodation provider can meet their legitimate objectives in a less discriminatory way;
5.) Whether the standard is properly designed to make sure the desired qualification is met without placing an undue burden on the people it applies to;
6.) Whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.
Among the relevant factors for assessing reasonable accommodation are the financial cost of the possible method of accommodation, the relative interchangeability of the workforce and facilities, and the prospect of substantial interference with the rights of other employees.
The Duties of Employees
Appropriate employee oriented accommodation may change over time as an individual’s health needs change. Employees have a duty to request an accommodation, make their needs known to their employer, answer questions and explain their limitations, take part in discussions regarding potential accommodation solutions, co-operate with experts whose assistance is required and work with an employer on an ongoing basis to manage the accommodation process.
The Duties of Employers
Employers have other duties to recognize the need for accommodation, gather relevant information and assess needs to become informed, implement their decision and follow up. Employers should accept accommodation requests in good faith, take an active role in investigating alternative approaches and possible accommodation solutions, maintain records and ensure confidentiality is respected during this process, grant accommodation requests in a timely manner when appropriate and explain where accommodation requests would be inappropriate.
Forms of Accommodation
The Ontario Human Rights Commission provides some helpful examples of accommodation on an organizational scale and on an individual level.
Accommodations may include modifying an organization’s; buildings and facilities, policies and processes, performance goals, conditions and requirements, decision-making practices, work, housing or service culture and methods of communication.
Employees may be accommodated through; modifying job duties, making changes to the building, referring someone to an employee assistance program, providing alternative supervision arrangements, providing alternative ways of communicating with the employee, allowing for more training, or training that is delivered in a different way, modifying break policies allowing short-term and long-term disability leave, allowing a flexible work schedule, job bundling and alternative work.
We hope this has been helpful to understand the common law duty to provide reasonable accommodation to individuals. While there is no one size fits all approach to accommodation we are optimistic that the information laid out in this document will be a valuable starting point for both interested employees and employers.