WORKPLACE ACCOMMODATION CHECKLIST: Effectively Responding to an Employee s Request for Accommodation OVERVIEW Under the Human Rights Code, the duty to accommodate consists of two separate elements. The first of these is the substantive component of the duty. This is often conceptualized as the practical piece of the accommodation puzzle, which requires employers to provide employees with an appropriate form of accommodation, where it is required. The second element of the duty to accommodate, however, is the procedural component. This procedural component, as the name suggests, is less concerned with the actual form of accommodation provided and, instead, focuses on what the employer has done procedurally to consider and assess an employee s accommodation request. Each request for accommodation necessarily raises unique issues and considerations. In this respect, workplace accommodation requests are highly individualized and fact specific. Human rights jurisprudence is also clear that there is no one form or process of accommodation but, rather, that each situation must be dealt with on a case-by-case basis. While each accommodation request must therefore be assessed on its own merits, there are some general steps that can, and should, be followed in an effort to ensure that both the substantive and procedural components of the duty to accommodate are met. The checklist outlined below sets out some of the general steps that should be followed to effectively respond to an employee s request for accommodation. THE CHECKLIST 1. An employee makes a request for accommodation / The employer reasonably suspects that the employee requires accommodation Note: It is not always the case that an employee must actively request accommodation. In situations where an employer knows or reasonably ought to know that an employee requires accommodation, the employer has an obligation to take active steps to make appropriate inquiries to ascertain if intervention may be required.
- 2-2. Once the issue of accommodation has been raised, it must be determined whether there is a link or nexus to a prohibited ground under the Human Rights Code (i.e. does the request for accommodation relate to one of the following: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability). Where no such link exists, the duty to accommodate will not be triggered. 3. Consult with the employee seeking accommodation to fully understand the nature and basis of his/her request, as well as any suggestions or recommendations he/she may have regarding appropriate accommodation. Note: Human rights jurisprudence dictates that the accommodation process is a collaborative one and that employer and employee (as well as the union, where one exists) all have a role to play in the process. Making decisions in the absence of such consultation is likely to be deemed to be a failure to fulfill the procedural component of the duty to accommodate even if the right decision in respect of the substantive form of accommodation may have ultimately been reached. 4. Request and review supporting information and/or documentation to substantiate the request for accommodation (e.g. doctor s notes, hospital records, treatment plans, etc ). Wherever possible, these requests for information and documentation should be set out in writing so that all requests are documented and the employee cannot later claim that he/she was never asked to provide additional information. Note: Employers are typically not entitled to ask for an employee s medical diagnosis. However, in most circumstances, it is reasonable to request the provision of information about: (i) the general nature of the employee s illness or disability; (ii) the employee s prognosis; (iii) what limitations or medical restrictions the employee may have; (iv) whether these limitations prevent the employee from performing his/her regular job duties and responsibilities; (v) what, if any, modifications and/or accommodations can be implemented in order to return the employee to work; and (vi) when it is anticipated that the employee will be capable of returning to work, either with or without accommodation. 5. Where inappropriate, insufficient, or contradictory information is provided, an employer has the right, and should exercise the right, to require further information and/or clarification of anything that has already been provided. Note: Ordinarily, an employer will not be permitted to contact an employee s physician or health care provider directly without the employee s consent. As such, the best practice when seeking additional medical information or documentation is to provide an employee with a letter outlining the request in this regard to bring to his or her physician, thus allowing the employee to provide the physician with the requisite consent for any necessary disclosure.
- 3-6. Once sufficient information has been received and it has been determined that the employee s request for accommodation: (i) relates to a prohibited ground; and (ii) legitimately requires the employee to be accommodated in the workplace, a full assessment of the available accommodation measures must be undertaken. This assessment process will include a review of the following, with the outcome at each stage being fully recorded, documenting what factors were considered and the reasons why a particular conclusion was ultimately reached: The Employee s Regular Position: The first step of the assessment process should be to determine whether the employee can perform his/her existing job If the employee cannot perform all of his/her regular duties and responsibilities, consideration must be given to whether the employee can perform the job in a modified form (e.g. modified scheduling, use of supportive devices, etc ) Where the employee is incapable, even with modification, of performing the essential elements of his/her regular position, then the employer must proceed to the second stage of the assessment process: looking at other available positions in the workplace. Other Positions in the Workplace Where an employee cannot perform his/her regular position in a modified form, then consideration must be given to other available jobs within the organization that the employee may be able to perform, either with or without modification A thorough review of the workplace should be undertaken, which documents and records which jobs are available and which of them, if any, meet the employee s identified restrictions Possible Bundling of Duties Where an employee is unable to perform his/her regular position, or another full position within the workplace, there is jurisprudence available to suggest that consideration should be given to whether tasks and responsibilities from various positions across the organization can be bundled together to provide the employee with an opportunity to perform a productive and useful job Given this line of case law, employers are well advised to consider whether it is possible, absent undue hardship, to create a position out of re-bundled duties and responsibilities
- 4-7. Consult with the employee (and union, if any), as well as with the employee s healthcare provider where professional guidance is required, throughout the assessment process to ascertain the suitability of any available accommodation options. 8. Determine which of the available accommodation options are most appropriate in the circumstances and communicate this decision to the employee in writing and in a timely manner. Note: An employee is not entitled to their preferred method of accommodation. Just because an employee has a preference as to which form of accommodation may ultimately be provided, this does not mean that an employer is required to oblige. Rather, the duty to accommodate simply requires the employer to provide an employee with reasonable accommodation, up to the point of undue hardship. 9. Where it is determined that an employee cannot be accommodated because no suitable work is available or because to do so would cause the employer undue hardship, objective evidence should be gathered and recorded in support of such a conclusion. However, it should be recognized that the duty to accommodate is an ongoing duty which requires the employer to periodically revisit the question of whether accommodation is possible, either because of changes in the workplace or because of changes in the employee s restrictions. 10. Where an appropriate accommodation measure has been identified, it should then be implemented as soon as practicable. In particular, the accommodation measure that is ultimately implemented should be documented appropriately and should be effectively communicated to those who need to be made aware (in a manner that respects the employee s privacy) to ensure that the implementation process runs smoothly and that all those who have a supporting role to play can carry out their obligations in this regard. 11. Once the accommodation measure has been implemented, it should be regularly monitored to ensure that it continues to meet the needs of the employee in question. Note: in situations of workplace accommodation, it is not uncommon that an employee s needs may change or evolve over time. The accommodation process is therefore a progressive one and, in order to meet its obligations under the Human Rights Code, an employer may be required to review and modify the accommodation plan should circumstances change. This, of course, includes situations in which accommodation is no longer required and the accommodation measures, which once needed to be implemented, can be discontinued. 12. Throughout the accommodation process, the lines of communication between employer and employee (and union, if any) should be kept open. This free-flowing dialogue facilitates the accommodation process and assists in ensuring that all parties to the process meet their duties and obligations in respect thereof.
- 5 - CONCLUSION As noted at the outset, depending on the situation at hand, the workplace accommodation process can be a highly nuanced one. While each set of circumstances will inevitably raise its own unique considerations and challenges, we hope this general overview of workplace accommodation provides a helpful introduction to the process. For further information or for specialized assistance please contact a member of our team. The information contained in this memorandum is provided for general information purposes only and does not constitute legal or other professional advice. Reading this article does not create a lawyer-client relationship. Readers are advised to seek specific legal advice from Sherrard Kuzz LLP (or other legal counsel) in relation to any decision or course of action contemplated.