Duty to accommodate
The duty to accommodate starts with the principle of respect for the dignity of persons with disabilities. It is concerned with their physical and psychological wellbeing, their empowerment and autonomy, and promoting their full participation in society.
The Canadian Human Rights Act determines that employers have a duty to accommodate employees who fall under the Act up to the point of undue hardship, taking into account health, safety and cost.
The onus is generally on the employer to provide documentation demonstrating reasonable efforts to offer accommodations. The duty to accommodate is not about employee preferences - it is a vehicle for removing barriers related to grounds of discrimination up to the point of undue hardship to the employer.
Difficulties sometimes arise when trying to strike the right balance between the rights of the employee and the right of an employer to operate a productive workplace. There is no set formula about what constitutes undue hardship. However, an employer needs to make a genuine and conscientious effort to provide accommodations that can be documented and demonstrated. Health, safety, cost, collective agreements and legitimate operational requirements are used as criteria to determine whether accommodations can be offered.
According to the Treasury Board of Canada Secretariat, the following steps can be followed:
- Recognize the need for accommodation
- Gather relevant information and assess needs
- Make an informed decision
- Implement the decision
- Follow up and keep records
Duty to accommodate is considered on a case-by-case basis. The employer needs to understand and assess each employee’s circumstances in order to establish whether the required accommodations are up to the point of undue hardship. Generally, undue hardship is considered an onerous threshold to meet, while at the same time an emphasis is also placed on reasonable versus preferred accommodations. These issues are often clarified in the courts.
- Treasury Board of Canada Secretariat: Duty to Accommodate – A General Process for Managers
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
- Article 1, The Universal Declaration of Human Rights
Human rights are moral principles that provide standards for how humans should or must behave towards other individuals or groups.
- Human rights are thought of as being universal (applying to all humans, everywhere) and egalitarian (the same for everyone).
- Human rights are often considered fundamental and inalienable, meaning that a person is inherently entitled to these rights simply because they are a human being, regardless of nationality, location, language, religion, ethnic origin or any other status, including disability. Human rights should not be taken away from others, except as a rule of due legal/judicial process.
In Canada and in many other countries, human rights are protected as constitutional and legal rights in national and international law. As individuals in Canadian society, we are entitled to our human rights, we should respect the human rights of others, and we must honor federal/provincial/territorial laws and regulations that protect, preserve and promote human rights.
There are four key processes in Canada developed to protect the human rights of its citizens.
- The Canadian Human Rights Act: Created with the goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set of prohibited grounds such as sex, disability, religion, or other characteristics.
- The Canadian Charter of Rights and Freedoms: As part of Canada’s Constitution, the Charter protects every Canadian’s right to be treated equally under the law, it guarantees broad equality rights and other fundamental rights such as the freedom of expression, freedom of assembly and freedom of religion, and it also protects the rights of all Canadians from infringements by laws, policies or actions of governments, including authorities such as the police.
- The Canadian Human Rights Commission (CHRC): This Commission was created to administer the Canadian Human Rights Act; the CHRC also ensures compliance with the Employment Equity Act. It aims to promote an inclusive society based on equal opportunity and free from discrimination - through the use of an effective and fair complaints process, research and policy development, and by representing the public interest to advance human rights for all Canadians.
Provincial human rights laws and legislation. For more information, contact the Canadian Human Rights Commission.
A list of provincial/territorial human rights agencies can be found at:http://www.chrc-ccdp.gc.ca/eng/content/provincial-and-territorial-human-rights-agencies
Human rights - mental health disorders and addiction
In Canada, there is federal and provincial legislation that recognizes the dignity and worth of every citizen (including those with mental health disabilities and addictions), providing equal rights and opportunities and freedom from discrimination, under the law, in the areas of housing, employment, goods, facilities and services, contracts, and membership in unions or trade/professional associations.
According to the World Health Organization, disabling barriers continue to contribute to the disadvantages experienced by people living with mental health disabilities.
- Poorer health outcomes
- Less economic/employment participation
- Lower educational attainment
- Higher rates of poverty
- Restricted participation in community/social life and increased dependency on others
For example, there are deep rooted societal myths, stereotypes and processes that disadvantage persons living with disabilities, including mental health disorders and addictions.
Workplace barriers may include:
- The assumption that people with (mental health) disorders cannot compete on merit
- Unfavorable employer/service provider attitudes
- The misinformed idea that disability is not a mainstream business/economics issue but a matter better left in the hands of medical and rehabilitation experts
- Lack of adequate support for well-intentioned employers who need time and/or resources to effect workplace changes and to promote recruitment/retention of employees living with disabilities
- World Health Organization: Summary World Report on Disability (2011)
- Mental Health Commission of Canada: Equality, dignity and inclusion: Legislation that enhances human rights for people living with mental illness
Addiction issues present a significant challenge for employers from a legal and human resource perspective. Human rights legislation require that employers accommodate employees with any disability, including addiction related illnesses such as alcohol or substance abuse problems. The concept of undue hardship needs to be considered with safety-sensitive work environments.
If the employer is aware or ought to be reasonably aware of an addiction or disability related issue, they have the duty to inquire and investigate if it is inappropriate behaviour for the poor work performance or is it disability related before taking any disciplinary action.
- Social Science Research Network: Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada
Accommodations quick reference
In order to facilitate a successful and sustainable return to work, it is essential that the accommodations match the restrictions and limitations of the employee.
Employers should be familiar with the provision of light duties to accommodate an ill/ injured employee’s safe and timely return-to-work.
- Light duties for physical restrictions and limitations are tasks that are less physically demanding.
- Light duties for cognitive and/or social restrictions and limitations are less socially or cognitively demanding. These limitations may present with both psychological and non-psychological conditions.
Mental health conditions may cause limitations in the following areas:
- Social interaction
- Ability to make decisions/multi-task
Research has shown that there are several general areas of accommodations that employers can consider when their employee with a mental health condition is returning to work (Schultz, Winter and Wald, 2011):
- Modifying tasks and how they are scheduled, and exchanging them with more appropriate tasks.
- Introducing and possibly maintaining a flexible or part time schedule, or allowing job sharing.
- Changes to the physical work environment to help an employee concentrate, such as reducing auditory or visual distractions.
- Exploring assistive devices on a case by case basis, such as computer software, organizers, recorders and timers.
- Introducing co-workers and supervisors as mentors/trainers in order to provide continuous support.
- Maintaining regular check-ins, meetings and opportunities to provide reinforcement of work performance as well as to problem-solve.
The Occupational Health and Safety Agency for Healthcare suggests:
- Work accommodations should include a sensible redistribution or reduction of work demands on the employee and their co-workers.
- Making transitions to less stressful environments may be beneficial for employees who are unable to change or cope with the fast-paced, high-pressure nature of their working conditions.
- Occupational Health and Safety Agency for Healthcare: Best Practices for Return-to-Work/Stay-at-Work Interventions for Workers with Mental Health Conditions (2010)
- Work accommodation and retention in mental health: Springer 2011: Izabela Z. Schultz and E. Sally Rogers: Evidentiary support for Best Practices in job accommodation in mental health: employer-level interventions: Izabela Z. Schultz, Alanna Winter, Jaye Wald