The Why, What and How of the Duty to Accommodate to the Point of Undue Hardship

Duty to Accommodate to the Point of Undue Hardship

Under the Human Rights Act, employers and unions have a legal duty to accommodate the needs of employees with protected characteristics who are negatively impacted by an employment requirement, rule or standard.

Why does the duty to accommodate exist?

Accommodation is necessary to ensure that employees with protected characteristics have equal opportunities, access and benefits.

Two components of accommodation.

The duty to accommodate has 2 equally important parts:

1. a good faith process of accommodation and
2. the appropriateness of the accommodation provided.

The three principals of accommodation.

1. Respect for dignity. Accommodation must be provided in the way that most respects the dignity of the employee, if doing so does not cause undue hardship.

Example: ensuring employees who use mobility devices have the same opportunity as others to enter a building in a pleasant manner.

2. Individualization There is no set formula for accommodating employees identified by Act grounds. Each employee’s needs are unique and must be considered afresh when an accommodation request is made.

Example: defining a maximum period for employee absences without taking into account the individualized nature of the accommodation process.

3. Integration and full participation. Workplace accommodations should be developed and implemented with a view to maximizing an employee’s integration and full participation.

Example: A children’s swimming program at a community center temporarily assigns an instructor to a desk job while they are unable to swim due to health reasons. This allows the instructor to continue working and contributing to the community center.

What is the Point of Undue Hardship?

There are three considerations for assessing whether a workplace accommodation causes undue hardship:

1. Costs may amount to undue hardship if they are:

• quantifiable,
• shown to be related to the accommodation, and
• so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability.

2. Accommodations that interfere with the rights of others may amount to undue hardship.

3. Health and Safety

If a workplace accommodation is likely to cause significant health and safety risks, this could be considered “undue hardship.” Employers have an obligation to protect the health and safety of all their employees, including people with disabilities, as part of doing business safely, and as part of fulfilling their legal requirements under PEI’s occupational health and safety laws.

The accommodation process is an ongoing shared responsibility.

Everyone involved should cooperatively engage in the process, share information and consider potential accommodation solutions.

Employees requesting accommodation are required to:

• make accommodation needs known to the best of their ability, preferably in writing, so that the person responsible for accommodation can make the requested accommodation,
• answer questions or provide information about relevant restrictions or limitations, including information from health care professionals (see Medical Certificate Information),
• take part in discussions about possible accommodation solutions,
• co-operate with any experts whose assistance is required to manage the accommodation process or when information is needed that is unavailable to the person with a disability,
• meet agreed-upon performance standards and requirements, such as job standards, once accommodation is provided,
• work with the employer on an ongoing basis to manage the accommodation process.

Employers granting accommodation are required to:

• accept the person’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise,
• obtain expert opinion or advice where needed,
• take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate,
• keep a record of the accommodation request and action taken,
• maintain confidentiality,
• limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request (see Medical Certificate),
• grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language,
• bear the cost of any required medical information or documentation. For example, employers should pay for doctor’s notes and letters setting out accommodation needs.

Examples of workplace accommodation may include:

• allowing a flexible work schedule,
• modifying job duties,
• modifying workplace policies,
• making changes to the building (for example, installing ramps, hand rails, automatic door openers, wider doorways, etc.),
• modifying workstations (making ergonomic changes, supplying a specialized chair, back support, etc.),
• providing specialized adaptation or assistive devices for computers, accessible technology,
• providing alternative ways of communicating with the employee,
• additional training,
• allowing short-term and long-term disability leave,
• alternative work.