Accommodating disabilities at work is a crucial aspect of employment law, and it is based on the concept of the “duty to accommodate.”
This blog discusses an employer’s duty to accommodate employees with disabilities in Ontario.
Overview of “Duty to Accommodate”
Primarily governed by the Ontario Human Rights Code (the Code), the duty to accommodate is an essential part of creating an inclusive and diverse work environment.
The Code prohibits discrimination on various grounds, including disability. It defines “disability” broadly and covers both visible and invisible disabilities. The definition includes any degree of physical disability, mental disability, developmental disability, learning disability, or any other impairment.
The Code essentially places a legal obligation on employers to make reasonable adjustments or accommodations to the workplace or their employment policies, to enable employees with disabilities to participate fully in the workplace.
Reasonable accommodation means making changes or adjustments to the workplace, job duties, or policies that allow an employee to perform their job effectively, participate in training, and access benefits and opportunities.
This legal obligation ends only when accommodating an employee will cause undue hardship to the employer. Employers are not required to accommodate disabilities if doing so would result in undue hardship.
Undue hardship is determined on a case-by-case basis and considers factors such as the cost, health and safety concerns, and the size and nature of the employer’s operation.
The accommodation process typically involves an interactive dialogue between the employer and the employee who has a disability. This conversation helps identify the specific accommodation needs and evaluate potential solutions up to the point of undue hardship.
Examples of Accommodations
Accommodation can take many forms, including modifying work hours, providing assistive devices or technology, restructuring job tasks, offering additional training, or modifying workplace policies. The specific accommodation will depend on the individual’s needs and the nature of their disability.
If you are denied reasonable accommodation by your employer
If you believe you have been denied reasonable accommodation by your employer, you have rights and options to address the situation.
Below are some steps you can take:
- Document the Situation: Keep records of all communications and interactions related to your accommodation request, including emails, letters, or conversations with your employer or HR department. Document the nature of your disability, the specific accommodation you requested, and any responses you received.
- Initiate a Conversation: Speak with your employer or HR department about your concerns and the denial of accommodation of your disabilities. It is possible that there may have been a misunderstanding or miscommunication, and discussing the issue informally may lead to a resolution.
- Request Formal Accommodation: If the initial conversation does not lead to a resolution, formally request accommodation in writing, specifying your needs and how the accommodation would enable you to perform your job effectively. Keep copies of all correspondence.
- Consult the Ontario Human Rights Commission: If your employer continues to deny reasonable accommodation or you believe they are not meeting their legal obligations, consider reaching out to the Ontario Human Rights Commission (OHRC) for guidance. The OHRC can provide information and resources on human rights and accommodation.
- File a Human Rights Complaint: If informal discussions and the involvement of the OHRC do not lead to a resolution, you may choose to file a formal complaint with the Human Rights Tribunal of Ontario (HRTO). The HRTO is a quasi-judicial body that handles complaints of discrimination and failure to accommodate based on disability. There is generally a time limit for filing a complaint, so consult with an employment lawyer or visit the HRTO website for specific deadlines and procedures.
- Seek Legal Advice: It can be beneficial to consult with an employment lawyer who specializes in human rights and accommodation issues. They can provide legal advice, assess the merits of your case, and guide you through the complaint process if you decide to pursue legal action.
- Consider Mediation: In some cases, the HRTO may offer mediation to resolve the dispute without going through a full hearing. Mediation can be a quicker and less adversarial way to reach an agreement.
- Document Retaliation: If you believe you have faced retaliation or adverse consequences for asserting your accommodation rights, document these incidents and consider discussing them with your lawyer or including them in your complaint.
If your employer is found to be in violation of the Ontario Human Rights Code, they may be required to provide the accommodation you requested or face penalties.
How the team at Sultan Lawyers can help you
Consulting with an employment lawyer early in the process can help you understand your rights and determine the best course of action based on your specific circumstances.
Whether you are an employee or an employer who needs assistance with workplace matters, including any questions you may have about the duty to accommodate, we would be happy to assist you. Please contact Toronto employment and immigration lawyers, Sultan Lawyers, at (416) 214-5111 or via email at firstname.lastname@example.org.
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