Overview

Preventing Discrimination

Tools and Resources

Employer’s Rights and Responsibilities

Questions in this section (click on question):

 21. What is an employer’s obligation to accommodate someone who is applying for a position?
 22. What is an employer’s obligation to accommodate a new hire? 
 23. An employer suspects an employee needs accommodation, although the employee has not requested it. What is the employer’s responsibility to address this need?
 24. Is the employer entitled to know everything about an employee’s medical condition?
 25. Can an employer go to an outside source to assist in determining accommodation?

21. What is an employer’s obligation to accommodate someone who is applying for a position? 

Employers must ensure that the hiring process does not discriminate on the grounds protected under the Canadian Human Rights Act. This means that employers must accommodate job applicants who, because of a personal characteristic protected by the Act, are unable to participate in the hiring process in the same manner as other applicants.

For example, an employer should provide a wheelchair-accessible interview location, or it should provide additional time for an applicant with a learning disability to write an exam. Employers do not have to accommodate applicants during the hiring process, however, if they can show that doing so would be an undue hardship.

Employers can exclude applicants having personal characteristics protected by the Act if the exclusion is based on a bona fide occupational requirement (BFOR). A BFOR is a standard or rule that is integral to carrying out the functions of a specific position, such as a vision requirement for air traffic controllers. See Question #13 (What is a bona fide occupational requirement?) and Question #14 (What is the process for determining if a rule or standard is a BFOR?)

22. What is an employer’s obligation to accommodate a new hire?

An employer must hire a successful applicant even if the candidate requires accommodation, unless doing so would amount to an undue hardship.

For example, a mother who requires a flexible start time to care for her special needs child will have to be accommodated, unless the employer can demonstrate that doing so would be an undue hardship.

23. An employer suspects an employee needs accommodation, although the employee has not requested it. What is the employer’s responsibility to address this need? 

Employers must accommodate employees who show signs of needing accommodation, even if they haven’t asked for it,¹³ based on the “ordinary person test.” If an ordinary person had the same information that the employer has about the employee, would that person have known that the employee required accommodation?

Some signs that an employee may require accommodation include a sudden drop in attendance, a rise in lateness, sudden changes in behaviour or unusually poor work performance. The employee may also start exhibiting unsafe work practices.

Employees are often reluctant to inform an employer that they require accommodation, because they do not feel comfortable asking the employer for help. In some situations, employees fear that telling the employer about a problem or asking for accommodation will have negative consequences, such as losing their position, being refused future promotions, being demoted, receiving fewer hours or being humiliated by their supervisor or peers.

In other situations, employees may be embarrassed to admit that they require accommodation because of the stigma and indignity associated with disabilities concerning mental illness or substance addictions. Sometimes, the very nature of these disabilities means that employees are unable to ask for accommodation.

In this situation, an employer should first approach the employee in a non-confrontational and discrete manner to discuss the potential need for accommodation. If applicable, a union representative or support person should be present at the meeting.

These are key points that should be communicated to the employee:

• the discussion is confidential,
• the discussion is to determine if there is a problem or issue that needs accommodation and to arrange that accommodation,
• the employee will not be negatively affected by the accommodation or by any information provided,
• there will, if applicable, be a review of the employers’ accommodation policy and procedure, or otherwise there will be a review of the steps to follow to work out an accommodation,
• if applicable, the employee will be referred to resources funded by the employer, such as an employee assistance plan, short- or long-term disability plans, or other available financial and personal supports, 
• if applicable, there may be a request for diagnostic, specialist or third-party information needed to develop the accommodation plan.

Rarely, the employer may find that the employee is not capable of participating in the accommodation process. If so, the employer should have someone who represents the employee (such as a union representative, advocate, spouse or holder of power of attorney) to help design the accommodation process.

See also Question #18 (What is the employee’s duty to ask for accommodation?) and Question #11 (What if accommodation involves health and safety risks?)

¹³ See, Conte v. Rogers Cablesystems Ltd., (1999), 36 C.H.R.R. D/403 (C.H.R.T.)

24. Is the employer entitled to know everything about an employee’s medical condition?

Some employers believe that if they have a duty to accommodate, they also have the right to know the precise diagnosis of the employee’s disability. This is not the case. An employer is only entitled to receive the information necessary to enable it to accommodate the employee. This will include expert or professional verification that the employee has a legitimate functional limitation, a description of the limitation to help the employer accommodate that limitation, and a professional estimate of how long the employee will need to be accommodated.

See also Question # 20 (Do employees have to tell their employer why they need accommodation?)

Employers can overcome many of the difficulties associated with disclosure of sensitive medical information by having an accommodation policy that includes clear procedures for gathering medical information, for using the information strictly to accommodate an employee, and for maintaining the highest possible level of confidentiality. By developing a clear set of standards on using and maintaining this information, the employer will create a culture of trust, which will encourage employees who require accommodation to make this information more readily available.

See also Question #5 (Should employers and service providers have an accommodation policy?)

25. Can an employer go to an outside source to assist in determining accommodation?

Where either an employer or employee (or both) feel it is necessary, the employer can go to an outside expert to help develop the accommodation plan. Such an expert can provide these benefits:

• experience gathered from other workplaces and accommodations,
• a level of assurance for ideas the employer and employee have been considering but haven’t yet accepted, because of a lack of knowledge or trust,
• innovative suggestions or ideas on the accommodation process, and
• a demonstration that the employer is highly committed to accommodating the employee.