Procedures for providing information and initiating processes may vary according to whether or not the person requesting accommodation is an applicant for a position, or a new or existing employee.

Generally, the applicant or employee is responsible for requesting accommodation, but in some circumstances the employer may have a responsibility to initiate action leading to the provision of accommodation. While employers cannot be expected to ‘second guess’ an employee’s needs, they should be sensitive to the fact that sometimes an employee may not be able to identify and/or express his or her need. A complaint about a failure to provide accommodation may be successful, even if the employee did not clearly request one, if it could be argued the employer should reasonably have known of the need, but did not act.

Example A: An employee tells her supervisor: “I’m having trouble getting to work at my scheduled starting time because of family responsibilities”. This should be pursued as a request for workplace accommodation.

Example B: An employee tells his supervisor: “I need a half day a week off for the next six weeks to get treatment for a medical problem”. This should be pursued as a request for workplace accommodation.

Example C: An employee tells her supervisor that she would like a new chair because the present one is uncomfortable. Although this is a request for a change of facilities in the workplace, the statement is insufficient to put the employer on notice that this is a request for a workplace accommodation. The supervisor should, however, clarify the reason for the request to determine whether or not it arises due to a disability.

Example D: An employee with a developmental disability is required to deliver documents and messages to staff. There are two staff with similar names and the employee regularly mixes them up. The supervisor is aware of the employee’s disability. As such, the supervisor might reasonably believe that this problem may be related to the employee’s disability and that the employee is unaware of, or unable to make a request for workplace accommodation because of the disability. The supervisor should speak to the employee about the problem and ask if it would be helpful to develop a system that enables the employee to more easily distinguish between the two names.

Example E: An employee who has been treated for stress and depression is experiencing difficulty maintaining her concentration when trying to complete assignments and meet critical deadlines. Her supervisor recognizes the problem and speaks to the employee about possible accommodations. They make arrangements so that the employee can organize her time by scheduling "off" times during the week where she can work without interruptions. The employee is also placed on a flexible schedule that gives her more time for counselling and exercise. The supervisor trains the employee’s co-workers on stress management and provides information about the company’s employee assistance program.

(These examples are based, in part, on those provided by the U.S. Equal Employment Opportunity Commission in Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act and on examples posted on the website of the U.S. Department of Labor’s Office of Disability Employment Policy.)

An applicant is not obliged to inform an employer of his or her accommodation requirements prior to being hired. However, if the employer raises the need for accommodation, but the applicant or employee specifically decides not to pursue the issue, the employer will likely have fulfilled its responsibilities in this area.

Many employers require new employees to take and pass a medical examination as a condition of employment. Where a medical examination is a job requirement, this should be discussed with an applicant only after the job offer has been made and accepted.

The need for accommodation cannot be used when evaluating the merits of an applicant or employee.

The [Manager of Human Resources] shall ensure that all people making enquiries about positions advertised within [Everyone’s Workplace Inc.] are provided with information about the accommodation policy and procedure, and advised of the process for requesting accommodation during the selection process.

A person making an enquiry or applying for a position who requires accommodation in relation to the selection process should be advised to direct the accommodation enquiry as soon as possible to the [Manager of Human Resources]. The person should identify the accommodation required and the reason it is needed.

The [Manager of Human Resources] is responsible for ensuring that Part I of Form A is completed and countersigned by the applicant when a request is made.

(ii) New employees

The person responsible for making the offer of a particular position shall, after making the offer and receiving an acceptance, advise the new employee of his or her right to workplace accommodation and ask whether accommodation is required.

The [Manager of Human Resources] shall ensure that all new employees are provided with a copy of the policy and procedure in the employee handbook.

A new employee who requires accommodation may make a request for accommodation either before, or as soon as possible after commencing the job, to the [Manager of Human Resources] or the supervisor, advising them of the accommodation required and the reason it is needed.

Where the employee is not aware of the appropriate accommodation, but is aware that there will be some accommodation required, it is sufficient for him or her to advise of the need.

The person who receives the request for accommodation is responsible for ensuring that the request is recorded on Part I of Form A and countersigned by the employee.

A copy of Part I of Form A should be forwarded to the [Manager of Human Resources] within two working days of the request being made.

(iii) Existing employees

The [Manager of Human Resources] is responsible for ensuring that all existing employees are reminded of the policy and procedure every six months, and for ensuring that a current copy of the policy and procedure is available in each designated common area within [Everyone’s Workplace Inc.].

When existing employees become aware of the need for workplace accommodation, they are responsible for advising their supervisor of this need and the accommodation required (if known).

The supervisor is responsible for ensuring that the request is recorded on Part I of Form A and countersigned by the employee.

A copy of Part I of Form A should be forwarded to the [Manager of Human Resources] within two working days of the request being made.

Supervisors are to be sensitive to requests that are not framed in the specific language of ‘workplace accommodation’, and to situations where no request is made, but a problem is apparent which may require some form of accommodation.

Do the procedures clearly explain what action should be taken to process the request?

Does the supervisor, or responsible person, know what to do when he or she needs external assistance or when his/her delegated authority is limited?

Do the procedures identify at what point questions of cost or risk to health or safety should be referred to those with authority to make decisions in relation to undue hardship?

Many requests for individual accommodation will be dealt with by the immediate supervisor speedily and with little effect on the organization. Some, however, may involve complex technical, organizational, safety or cost issues. Each employer needs to clearly explain to supervisors what they have to do to process a request, when and where they can go to seek expert assistance, and when they need to refer to a higher authority for decision-making.

It is also important for supervisors to know that, when there are alternative means of meeting the request for accommodation, preference should be given to the choice of the employee. If the supervisor decides to choose an alternative because of cost or other reasons, the supervisor should be careful to ensure that the alternative is equally effective in meeting the accommodation needs of the employee.

The procedures under this heading should include a statement about levels of delegated financial and other authority. This Guide does not include anything in the sample as this will differ with each organization.

On receiving the request, the [Manager of Human Resources] will discuss the accommodation required and identify possible alternatives with the applicant.

The [Manager of Human Resources] will make a decision concerning the request and, if approved, take the necessary action to ensure that the accommodation is provided.

The [Manager of Human Resources] should seek specialist advice where the request would require complex changes to the selection process. Such advice should be obtained after discussion and agreement with the applicant.

If the [Manager of Human Resources] is unable to approve the request for whatever reason, she or he must, within three working days of the request, advise the applicant of this decision and of the right to appeal as set out below.

Where there is a delay caused by implementing the accommodation, the applicant shall not be disadvantaged in the selection process. The applicant will be given additional time, equivalent to the delay, to complete the application process.

Parts II and III of Form A are to be completed and forwarded to the [Manager of Human Resources] within five working days of the accommodation request being finalized.

(ii) New and existing employees

On receiving the request the supervisor or [Manager of Human Resources] shall discuss with the employee the accommodation required and whether or not there are alternatives.

The employer representative may require documentation from the employee to verify the need for accommodation. Information should be limited to facts relevant to identifying the appropriate accommodation. For example, in cases involving accommodation of persons with a disability, employees have a right to privacy and need only provide a description of their functional limitations, not a report on the specific nature of their disability. Medical reports should be treated as strictly confidential and circulated on a need-to-know basis only.

When an employee has requested accommodation, the employer representative shall, in consultation with the employee:

• discuss the purpose and essential functions of the employee’s job;

• determine the precise job-related limitation;

• identify potential accommodation and assess the effectiveness each would have in allowing the individual to perform the job optimally; and

• identify any costs, benefits or detriments flowing from the alternatives.

Where the request involves issues outside the expertise of the employer, specialist advice should be sought. It is at the sole discretion of the parties to choose their own specialist for advice.

Such advice should be obtained after discussion and agreement with the employee.

Every effort should be made to adopt the accommodation preferred by the employee. If, however, there is an equally effective accommodation available, [Everyone’s Workplace Inc.] may choose to proceed with the one that is the least costly or easiest to provide.

Where the cost of the accommodation is greater than the amount for which the particular employer representative has authority, or where the employer representative identifies other significant potential detriments flowing from the accommodation, such as significant disruption to operations, she or he shall refer the request to the [Director of Corporate Services] for action.

The employer representative has authority to refuse accommodation for reasons other than undue hardship, such as believing there is insufficient evidence that the accommodation is needed or is linked to a protected ground under the Canadian Human Rights Act or the Employment Equity Act. In the event of such a refusal, she or hemust advise the employee immediately of this decision, and of the right to have the decision reviewed in accordance with the Appeal Process set out below. An employee should also be advised of the right to seek legal or other counsel, and the right to representation during the Appeal Process.

Where the preferred accommodation is refused, but an alternative is offered, the employee is to be advised of his or her right to have this decision reviewed in accordance with the Appeal Process set out below.

Where the provision of accommodation raises the likelihood of undue hardship, the employer representative will refer the matter to the [Director of Corporate Services].

Parts II and III of Form A are to be completed and forwarded to the [Manager of Human Resources] within five working days of the accommodation request being finalized.

Do the procedures require that the employee be advised of the right to complain under the Canadian Human Rights Act or other applicable complaint or grievance procedures if the request is refused?

The Canadian Human Rights Act states in section 15(2) that questions of undue hardship should be resolved “considering health, safety and cost”.

An employer can establish a mechanism for dealing with questions of undue hardship by referring to what the law says and how the Tribunal and courts have interpreted undue hardship in case law.

In the case of government departments and agencies, it is highly unlikely that the test for undue hardship will be met solely by demonstrating that an individual agency does not have adequate funds to provide accommodation. Actions may need to be taken to identify additional funds from within government as a whole.

• The nature and cost of the accommodation as assessed in the context of the size and financial situation of the employer as a whole.

• Safety and/or health risks, if any, and who bears them.

If the [Director of Corporate Services] concludes that the accommodation will result in undue hardship, she or he will forward an undue hardship analysis and recommendation to the [Head of Organization or Senior Executive Officer] as soon as possible, and not later than ten working days after receiving the request, unless specific specialist information or assistance is required and obtaining this results in a delay.

The [Head of Organization or Senior Executive Officer] will provide a decision with reasons in writing to the [Manager of Human Resources] and to the employee within five working days of receiving the analysis and recommendation.

Where the [Head of Organization or Senior Executive Officer] agrees that the accommodation would result in undue hardship, consideration must be given by the [Manager of Human Resources], in consultation with the employee’s supervisor and the employee, to offering alternative accommodation, such as possible changes to the job description or relocation to another, more suitable, position.

If the employee disagrees with the decision to refuse the accommodation, she or he may appeal using the procedure set out below.

The employee must be advised of his or her rights to appeal and counsel, and to lodge a complaint under the Canadian Human Rights Act [or any other applicable complaint or grievance procedure.]

Do the procedures require that the employee be advised of the right to complain under the Canadian Human Rights Act or any other applicable complaint or grievance procedure if an accommodation request is refused?

If formal or informal avenues of appeal already exist within the workplace, an employer may choose not to create or provide an appeal process for applicants and employees, or choose to limit such a process to issues other than decisions concerning undue hardship. However, if an employer intends to rely on a grievance procedure, it should ensure that accommodation is covered in the collective agreement and the time frames involved are suitable for responding to a request for accommodation.

An employee may choose to have a union or other person represent him/her during the appeal process.

Where a request for accommodation is refused, or the applicant believes the request has not been handled in accordance with this policy and these procedures, the applicant has a right of appeal to an Appeal Committee consisting of the [Manager of Human Resources] and two representatives from the [Employment Equity Committee or appropriate labour management consultation forum].

The applicant must be advised of this right immediately by the [Manager of Human Resources].

The applicant must advise the [Manager of Human Resources] within five working days if she or he wants the decision reconsidered by the Appeal Committee. The applicant has the right to make written submissions or to speak to the Committee about why the request should be approved. The applicant has the right to be accompanied by an advocate and/or union representative.

The Appeal Committee will make its recommendation within three working days of the appeal, and the recommendation of the Appeal Committee is to be sent immediately by the [Manager of Human Resources] to the [Head of Organization or Senior Executive Officer] for decision.  

If the appeal is refused, the applicant is to be advised of his or her continuing right to make a complaint of employment discrimination under the Canadian Human Rights Act or to use any applicable complaint or grievance procedures.

(ii) New and existing employees

Where a request for accommodation is refused, a less desirable accommodation approved where there are alternatives, or the employee believes the request has not been handled in accordance with this policy and these procedures, the employee has a right of appeal to an Appeal Committee consisting of the [Manager of Human Resources] and two representatives from the [Employment Equity Committee or appropriate labour management consultation forum].

The employee must be advised of this right immediately by the [Manager of Human Resources].

The employee must advise the [Manager of Human Resources] within five working days if she or he wants the decision reconsidered by the Appeal Committee. The employee has the right to make written submissions or to speak to the Committee about why the request should be approved. The employee has the right to be accompanied by an advocate and/or union representative.

The Appeal Committee will make its recommendation within three working days of the appeal, and the recommendation of the Appeal Committee is to be sent immediately by the [Manager of Human Resources] to the [Head of Organization or Senior Executive Officer] for decision.

The employee is to be informed immediately of the decision.

If the appeal is refused, the employee is to be advised of his or her continuing right to make a complaint of employment discrimination under the Canadian Human Rights Act or to use any applicable complaint or grievance procedures.

5. Training

The design, development and conduct of this training will be the responsibility of the [Director of Corporate Services] and will include:

• background and rationale (why we have a policy and procedure)

• diversity awareness (sensitivity to specific issues arising for particular groups)

• creating a discrimination-free workplace through the use of analytical tools or “lenses”
  

• procedures (how the procedure works, key questions that will arise, critical time elements)

• roles and responsibilities (who has responsibility for which aspects of the implementation of the procedure, including communication of the policy)

• decision-making authority (who has delegated authority to make decisions)

• due diligence (responding appropriately to needs and ensuring active consideration)

• sensitivity to requests that are framed in language other than that of workplace accommodation

• identification of expertise and resources to assist in identifying and obtaining appropriate accommodation (both internal and external to the organization)

• the appeal process (how the process works, rights within the process)

• reporting (what is required, who is responsible, form of reporting)

• confidentiality (reminder of rights to protection of personal information - Privacy Act)

The training will be provided as soon as practicable after a person begins supervisory responsibilities. A refresher course will be conducted with all supervisory staff every two years.

At the completion of the bi-annual review, the [Director of Corporate Services] will prepare a report on the outcomes of the review and ensure that the report is available to staff.

Any recommendations arising from the review will be forwarded to the [Head of Organization or Senior Executive Officer] for action.