Overview

Preventing Discrimination

Tools and Resources

Accommodation

5. Should employers and service providers have an accommodation policy?

While the law does not require you to have an accommodation policy, it is a good idea for employers and service provides to develop one. Doing so states a commitment to incorporating diversity into the workplace or in the delivery of services. Such a policy sets out a process by which the employer will consider all requests for accommodation.

In Meiorin¹, the Supreme Court of Canada ruled that employers who do not start an accommodation process could be liable under human rights law. Developing a policy before somebody asks for an accommodation would make the process of accommodation much simpler.

Employers can reduce confusion by providing clear information and training on accommodation and their own accommodation policy. Employees who clearly understand accommodation are much less likely to have unrealistic expectations. In fact, employees who are familiar with the accommodation process are more likely to provide helpful, timely information.

For information on creating an accommodation policy, please consult the Commission’s A Place for All – A Guide to Creating an Inclusive Workplace.

¹British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999 35 C.H.R.R. D/257 (S.C.C.) also known by the name of Meiorin

6. What are some examples of accommodation?

The ability to accommodate should be considered case by case. The following examples of accommodation are not comprehensive. Remember, one only has a duty to accommodate insofar as it does not impose an undue hardship on the operation of the business.

i) Modified physical and ergonomic conditions of the workplace

To perform their duties, employees with disabilities sometimes require changes such as these to their physical environment:

• increased space between cubicles, and space within a cubicle, to allow wheelchair access;
• specialized computer equipment, such as an ergonomic keyboard or mouse, to accommodate repetitive strain injury;
• modified monitor settings for large-print reading;
• desk chairs with specialized back and arm supports; and
• software for blind or visually impaired people that reads computerized text.

ii) Modified terms and conditions of employment

The duty to accommodate may require modifications in job duties if, for example, a person’s disability or religion prevents them from carrying out certain aspects of the job.

First, identify and list the essential tasks of the position. Some tasks may be incidental and rarely required. Other tasks can be delegated to other employees, perhaps in exchange for duties or tasks that the person requesting accommodation can perform. Alternatively, the employee could be excused from those tasks.

An employer is not expected to create a permanent or new position for an employee who requires accommodation. However, employers are expected to accommodate employees with short-term light duty or rehabilitation assignments as part of a return-to-work program. (See the next section, Temporary assignments.)

iii) Temporary assignments

Temporary reassignment can be a form of accommodation. This may involve temporary light duties. For example, an employee returning to work after back surgery may require a six-month period of modified or light duties until their back is strong enough to carry out the full functions of the job.

In other cases, accommodation may require a temporary transfer to a different position. For example, a pregnant employee who works a printing press may not be able to deal with the fumes from the ink and toner. A possible accommodation would be to move her to a customer service position until her baby is born.

With respect to pay and benefits, an employee who stays in the same job should get the same pay and benefits, no matter how that employee has been accommodated. If the employee is accommodated through a temporary assignment, the new position should have the same or comparable pay and benefits. If it is not possible to accommodate the person in their own job category or in a comparable job, the employee is expected to accept the compensation scheme of the new position.

iv) Leaves of absence

Sometimes an employee requires a temporary leave of absence to accommodate a disability-related illness or family emergencies. Generally, an employer is expected to accommodate such requests and to hold the position until the employee returns.

However, there are costs to filling a position temporarily. The employer may be unable to attract or retain qualified replacements because the position is not permanent. The employee’s team may not be able to work effectively. At some point, therefore, the absence may create an undue hardship for the employer. Paying the employee’s benefits over an extended leave of absence may itself be an undue hardship.

Of course, if the employee has an absenteeism problem unrelated to disability or to another protected ground under the Canadian Human Rights Act, the employer does not have a duty to accommodate that employee.

See also Question #36 (How long does an employer have to accommodate an employee who is absent from work due to a disability?).
 
7. What if there are several options for accommodation?
 
When different options for accommodation are available, the preferred alternative is the one which achieves the following:

• maximizes the individual's dignity, autonomy, privacy and integration into the
  workplace and the larger society;
• minimizes discomfort or inconvenience; and
• addresses the individual's needs most rapidly.

For detailed procedures on how to accommodate an individual, please consult the Individual Accommodation Procedures Guide in the Commission's A Place for All – A Guide to Creating an Inclusive Workplace. For example of the case law, read about this case in British Columbia.