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Duty to Accommodate: A General Process For Managers

Table of Contents

Introduction

Canadian law prohibits discrimination based on any of the eleven grounds identified in section 2 of the Canadian Human Rights Act (CHRA) and employers have a duty to accommodate employees to avoid such discrimination. Employers must accommodate employees who fall into the groups protected by the CHRA up to the point of undue hardship, taking into account health, safety and cost.See footnote [1]

To demonstrate that the duty to accommodate has been fulfilled, the employer must be able to document the process that was observed in considering and acting on the employee's request for accommodation. This document has been prepared to provide a general process to follow when assessing an accommodation request.

This document does not constitute legal advice, but is intended for use as a decision-making model to help departments and managers meet their duty to accommodate while acknowledging that accommodation is always decided on a case-by-case basis.

The document also describes the roles and responsibilities of key players in the accommodation process, such as managers, functional specialists (e.g., facilities, information technology, human resources/labour relations, occupational safety and health, compensation, legal services, Employee Assistance Program (EAP)), the employee representative, and the employee requesting the accommodation.

Eleven Prohibited Grounds of Discrimination

When you receive a request for accommodation or perceive a need, your first step is to determine whether the request falls under one or more of the following 11 grounds of discrimination that are prohibited under the Canadian Human Rights Act:

  • Race;
  • National or ethnic origin;
  • Colour;
  • Religion;
  • Age;
  • Sex (including discrimination because of pregnancy or childbirth);
  • Sexual orientation;
  • Marital status;
  • Family status;
  • Disability (a disability is a physical or mental condition that is permanent, ongoing, episodic or of some persistence, and is a substantial or significant limit on an individual's ability to carry out some of life's important functions or activities, such as employment. Disabilities include visible disabilities, such as the need for a wheelchair, and invisible disabilities, such as cognitive, behavioural or learning disabilities, and mental health issues); and
  • Conviction for an offence for which a pardon has been granted.

The duty to accommodate is most often applied to situations involving disabilities, but it also applies to the other grounds, such as family status.

The duty to accommodate is not about employee preferences; it is about removing discriminatory barriers related to the 11 prohibited grounds of discrimination, up to the point of undue hardship to the employer.

The following are common situations that could trigger the need for accommodation:

  • The employee is no longer able to perform a job or comply with current workplace policies or requirements as a result of changes in his or her situation. For example, the employee has developed a disability, has converted to a religion that imposes new obligations, or has experienced a change in family status.
  • A revised policy or requirement has been introduced by the employer, and the employee is unable to comply. For example, when a shift schedule is changed, an employee is not able to change his or her working hours because of a medical condition or family circumstances that limit the employee's ability to work at night. The duty to accommodate arises if the policy change causes discrimination against the employee based on one of the 11 prohibited grounds.
  • An employee tells you, "I'm having trouble getting to work at my scheduled start time because of new family responsibilities." You will need to get more information from the employee about the particular situation in order to assess further.
  • An employee tells you that he or she would like a new office chair because the present one is uncomfortable. This statement is insufficient for you to determine whether this is a request for a workplace accommodation. You should therefore clarify with the employee whether the reason for the request arises from a medical requirement.

Performance and the Duty to Accommodate

Performance problems can sometimes tell you that there may be a need to accommodate, even when the employee has not asked for an accommodation. As a manager, you are obligated in certain circumstances to initiate action to determine if an accommodation is needed, even if the employee has not asked for it.See footnote [2] You are encouraged to consult with your organization's human resources/labour relations functional specialists for guidance. The following are some examples of signs that might require further investigation to assess whether accommodation is needed:

  • Feedback from co-workers indicating that the employee is behaving erratically;
  • A sudden drop in attendance and increase in sick leave use;
  • An increase in lateness;
  • Sudden changes in behaviour; or
  • Unusually poor work performance.

If you have spoken to the employee about specific behaviours and offered the option of accommodation on several occasions, and the individual does not wish to pursue the matter, remember to document the steps you took to show that you did everything you could to help the employee and that you fulfilled your obligations regarding the duty to accommodate. Be sure to advise the employee of available services, such as EAP.

Example

You notice that a previously reliable employee is missing deadlines. On speaking with the employee, you have reason to suspect that stress or a mental health problem might be the cause. You suggest that the employee seek professional help and make sure he or she knows how to use your organization's EAP. Tell the employee that you can make adjustments to his or her schedule to accommodate any treatment that might be required. Make sure the employee understands that once he or she receives treatment, the health care provider can help by suggesting changes at work to enable the employee to better manage his or her workload. With the employee's consent, you obtain this information from the treating physician or counsellor, who recommends giving the employee more uninterrupted time at work so he or she can meet deadlines. You make this adjustment and you meet regularly with the employee to ensure that the accommodation is working.

Supporting Documentation: Medical and Other

As a manager, you are responsible for respecting the individual's right to privacy and confidentiality while fulfilling your obligations regarding the duty to accommodate. You will need to know when it is appropriate to ask for supporting information or documentation. You are encouraged to consult with your organization's human resources/labour relations functional specialists for guidance.

Employees may be reluctant to share any information or ask for accommodations for reasons such as the following:

  • Fear of being singled out and treated differently than others in the unit.
  • Discomfort about asking you for help.
  • Fear that telling you about a problem or asking for accommodation will have negative consequences, such as losing his or her position, being refused future promotions or career benefits, being demoted, receiving fewer hours, or being humiliated by co-workers.
  • Belief that the disability is not relevant to performance. For example, a person with a learning disability who has developed successful strategies for dealing with it may not wish to inform you of the disability.
  • Concern that confidential and sensitive information will become common knowledge in the workplace.
  • Embarrassment over admitting that accommodation is required because of the stigma and indignity associated with mental disabilities or substance addictions.

However, the employer is entitled to receive sufficient information to provide effective accommodation. Such information may include details on functional limitations. This kind of information is not usually required for employees who have readily evident disabilities such as permanent physical disabilities resulting from paraplegia or quadriplegia, or permanent sensory disabilities (e.g., visual or hearing impairment). When an employee's functional limitations are not readily apparent, you will need to obtain a thorough assessment of the disability. Examples include the following:

  • Disabilities pertaining to mental functioning, concentration or memory, including learning disabilities, attention deficit hyperactivity disorder, psychiatric disabilities and head injuries;
  • Complex disabilities that may manifest themselves in various ways depending on the individual, such as multiple sclerosis, muscular dystrophy and others; and
  • Temporary disabilities, such as recovery from an injury or operation (e.g., carpal tunnel syndrome).

For requests related to religious practices, you should not generally need supporting documentation. However, if you are unfamiliar with the religion or the specific religious practice, it may be appropriate to request additional information from the employee or a designated official within the employee's religious community. Again, the information you seek should focus on the needs pertaining to the accommodation rather than on personal information about the employee.

In general, keep the following in mind:

  • The information you seek must focus on the functional limitations and safety issues in order to determine the appropriate accommodation. The employer is not entitled to know the exact diagnosis.
  • You will need to receive information from functional specialists or professionals, including a description of the limitations and an estimate of how long the employee will need to be accommodated.
  • Only the information that is necessary for determining the accommodation should be shared, and it should be shared with only the people who need to know.
  • When gathering and sharing information, you must adhere to the Privacy Act and respect its principles, i.e., accountability, identifying purposes, consent, limiting collection, limiting use, disclosure and retention, accuracy, safeguards, openness, individual access, and challenging compliance.
  • If the employee decides not to cooperate by refusing to provide adequate information, the employee should be informed that, if you are unable to access adequate information, appropriate accommodation may not be provided. In these cases, you may have met your duty to accommodate. It is important for you to document what you have done to try to accommodate the individual's needs.

Limits on the Duty to Accommodate

Accommodation requires a balance between the rights of an employee or candidate and the right of an employer to operate a productive workplace.

Duty to accommodate, however, is not limitless. As a manager, you are not required to do the following:

  • Accommodate where undue hardship to the employer (health, safety and cost) would result.
  • Create an unnecessary job.
  • Retain an employee who is unable to meet his or her employment responsibilities despite accommodations. For example, you are not required to tolerate substandard performance or unpredictable attendance. Employees, once accommodated, are expected to meet bona fide occupational requirements and standards. It is important to ensure that all employees understand performance expectations. Accommodation aims to enable employees to achieve employment and performance standards.
  • Hire a candidate who, after being accommodated during the selection process, does not meet the essential qualifications required for the position.
  • Accommodate an employee's persistent absences if the absences are unrelated to a disability or any other prohibited ground. This situation is a management issue and must be resolved through proper mechanisms, such as the performance management or disciplinary process, depending on the circumstances.

How do you determine undue hardship?

Employers are required to provide accommodation up to the point of undue hardship. There is no set formula for deciding what constitutes undue hardship. To help determine undue hardship, consider health, safety, cost, collective agreements, the interchangeability of the workforce and facilities, and the legitimate operational requirements of the workplace. You should make serious, conscientious and genuine best efforts, document your efforts, and include input from the employee and the employee representative, where applicable, as well as from your organization's human resources/labour relations functional specialists

It is not enough to offer assumptions or impressions about what is or is not possible. For example, simply declaring that the cost is too high or that there is an unreasonable risk to health and safety does not constitute undue hardship. To prove undue hardship, you must provide substantial evidence and document it.

What is a bona fide occupational requirement?

The law recognizes that a limitation on individual rights may be reasonable and justifiable in employment situations. Discrimination may be defensible if an employer can show that the requirements are essential for performing the job in question.

For example, individuals employed as truck drivers must meet vision standards and have an appropriate driver's licence. Discrimination may be defensible if an employer can show that there are specific requirements that every individual performing a specific job must meet because they are essential to the effective and safe performance of the job.

How do you establish a bona fide occupational requirement?

The Supreme Court of Canada established a three-step process (Meiorin and Grismer cases, both in 1999):

  1. The rule or standard adopted must be connected to the functions of the position.
  2. The rule or standard is adopted in good faith on the grounds that it is necessary.
  3. The rule or standard is reasonably necessary to accomplish the purpose or goal, in the sense that the employer cannot accommodate individuals who possess the characteristics of a particular group without incurring undue hardship.

Employee and Candidate Responsibilities

Successful accommodation requires the collaboration of multiple parties, including the employee or candidate, the manager, the employee representative, functional specialists and co-workers.

The employee or candidate is expected to do the following:

  • Communicate the need for accommodation and not assume that the manager knows or should have known about the need.
  • Cooperate with the organization by providing relevant and appropriate information to support the request for accommodation.
  • Cooperate by undergoing a health evaluation or assessment, if appropriate, to support a request for accommodation. The employer is entitled to receive relevant information to find suitable accommodation (a refusal to allow the employer to obtain the necessary information could be a deciding factor in determining whether the employer has met its legal responsibilities pertaining to the duty to accommodate).
  • Work with the manager to find the appropriate accommodation solutions.
  • Consider all proposals that effectively respond to the needs. A reasonable accommodation proposed by a manager may not be the employee's preferred option. However, a rejection of reasonable accommodation efforts could be a deciding factor in determining whether the employer has met its legal responsibilities. For example, an employee returning to work after surgery may ask for another employee's position as part of a return-to-work program. The manager may instead suggest modifying the returning employee's duties. In this case, the employer may have met its duty to accommodate.
  • Advise the manager if accommodation measures need to be changed or if the agreed-upon solution has not worked as it was intended, and explore ways to modify the arrangements (remember that accommodations are not always a one-time provision; changes in employee needs or the job itself can trigger the need for new solutions).

Where Can I Go for Help?

Consult the following resources for more information on the duty to accommodate:

The Office of the Chief Human Resources Officer's Website also offers many other guides and advice for managers on a wide range of subjects, including performance management, integrated planning, informal conflict resolution, classification, employment equity, values and ethics, talent management, and learning.

Duty to Accommodate: A General Process for Managers

A Tool to Support Excellence in People Management and Organizational Effectiveness

Step 1: Recognize the Need for Accommodation

The duty to accommodate is not about employee preferences; it is about removing discriminatory barriers that are prohibited by the Canadian Human Rights Act.

  • An employee or candidateSee footnote [3] has requested accommodation.
  • You are aware that accommodation may be needed.
  • A third party acting on behalf of the employee or candidate has requested accommodation.
  • A request does not have to be in writing, and self-identification is not required to receive accommodation.
  • Once a need has been identified, the onus is legally on you as a manager to accommodate.

See "Eleven Prohibited Grounds of Discrimination" and "Performance and the Duty to Accommodate"

Step 2: Gather Relevant Information and Assess Needs

All accommodation documents must be kept confidential and separate from all human resources files.

  • Ask the employee or candidateSee footnote [3] what type of accommodation is needed. If applicable, ask the individual to provide supporting documentation, e.g., from a doctor.
  • Find out about your organization's requirements and processes.
  • Document your steps and keep your organizational contact informed.
  • Consult other resources if needed (your organizational contact, health professional or other functional specialists). For accommodation related to religious holidays and observances, gather relevant information  and refer to relevant collective agreements and policies.
  • Assess the work environment of the employee to determine the best way to meet the request.
  • Identify any implications or issues for the rest of your team. You may need to involve the employee representative.

See "Supporting Documentation – Medical and Other"

Step 3: Make an Informed Decision

Each person has unique needs. Work in partnership with the individual to find a solution.

  • Take the time to review the request, understand the needs and review supporting documentation to find the most effective, practical and cost-efficient solution.
  • Work with all interested parties, including the employee, the employee representative, functional specialists and, if necessary, co-workers for successful accommodation.
  • Document the accommodation agreement according to your organization's processes, and keep your organizational contact up to date on a timely basis.

See "Limits to the Duty to Accommodate", "Employee and Candidate Responsibilities" and "Where Can I Go for Help?"

Step 4: Implement the Decision

Accommodation is about removing barriers to enable an employee to perform and contribute fully to the organization.

  • Put in place the appropriate mechanisms to implement the agreed-upon approach.
  • Advise the individual of the rationale behind your decision, particularly if the request is denied based on a bona fide occupational requirement and/or undue hardship for the employer.
  • Ensure that the individual is aware of all available recourse mechanisms (including the Informal Conflict Management System, the departmental ombudsman, the Canadian Human Rights Commission, etc.).
  • Consult with the individual regarding the best approach to explaining the accommodation to anyone affected by the measures, if necessary.

Step 5: Follow Up and Keep Records

You should respect the dignity and privacy of the person being accommodated. Communicate only what you need to those who need to know.

  • Regularly follow up with the individual and modify the accommodation if necessary.
  • Document any changes and provide pertinent information to your organizational contact on a timely basis, respecting privacy and confidentiality.
  • Integrate accommodation needs into future human resources and business planning.

Accommodation is made on a case-by-case basis, and the process should be as uncomplicated as possible. The process should respect the dignity and privacy of the person being accommodated and must be provided on a timely basis.

Successful accommodation requires collaboration from all parties, including the employee, the employer, the employee representative, functional specialists and co-workers.

There is no set formula for accommodation. Each person has unique needs, and all employees have the right to be accommodated up to the point of undue hardship for the employer, based on prohibited grounds (see "Eleven Prohibited Grounds of Discrimination"). Accommodation is about removing barriers to enable an employee to perform and contribute his or her skills fully to the organization.


Return to footnote reference [1] Canadian Human Rights Act (Section 2 and Section 15(2)). For more information on the law and cases relating to the duty to accommodate, see the Canadian Human Rights Commission.

Return to footnote reference [2] Mager vs. Louisiana-Pacific Canada Ltd., unreported, British Columbia Human Rights Commission, June 29, 1998.

[3]Return to footnote reference The term "candidate" includes applicants from outside the federal public service and employees who are participating in the staffing process.