Workshop on Duty to Accommodate Policy
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Workshop on Duty to Accommodate Policy
Table of Contents
The "Policy on the Duty To Accommodate Persons with Disabilities in the Federal Public Service" (hereafter referred to as the "Policy" and identified with the symbol ) is intended to:
- increase understanding of what accommodation means
- increase awareness about the " duty to accommodate " and what needs to be done
- elaborate on the Federal Public Service's legal obligation to accommodate
- outline some of the principal steps necessary to attain the goal of a representative Public Service that includes persons with disabilities.
Preamble To The Policy
The Treasury Board and the Public Service Commission are committed to developing an inclusive, barrier-free work environment in which:
- all persons have equal access to opportunities in the federal Public Service;
- appointments are based on merit; and
- all employees feel included and valued.
The policy seeks to ensure the full participation of persons with disabilities in the federal Public Service, whether as candidates for employment or as employees.
Application-Who Is Affected By The Policy?
This policy applies with respect to accommodation:
- within the workplace, to all departments and agencies and other portions of the Public Service listed in Part 1 of Schedule 1 of the Public Service Staff Relations Act for whom the Treasury Board is the employer and;
- during staffing processes, to all departments and agencies and other portions of the Public Service for which the Public Service Commission has exclusive authority to appoint persons.
This policy came into effect on June 3, 2002. It replaces the Treasury Board Policy on the Provision of Accommodation to Employees with Disabilities dated July 1, 1999.
Why A New Policy?
- Bring the previous Policy into line with current jurisprudence and amendments to the Canadian Human Rights Act.
Responding to the Human Rights Tribunal decision (1999) that the Federal Public Service did not accommodate an employee with a learning disability to the point of undue hardship.
For more details, see internet web site for the Canadian Human Rights Tribunal www.chrt-tcdp.gc.ca click on "cases", then select "G" for Green.
- To foster a culture of "inclusion by design" within the Federal
Public Service by taking into account the needs of persons with disabilities
at the outset when designing new programs, new procedures, technological
applications or physical environments.
Results of the 2002 Public Service Survey indicate that much work still needs to be done to achieve an inclusive climate. For example, 42% of respondents mostly disagreed with this statement, "My department or agency works hard to create a workplace that prevents harassment and discrimination."
- To clarify responsibilities of the TBS, PSC, departments (including managers) and employees about the Duty to Accommodate.
Appendix A Guideline:
"The corporate culture of a department or agency can ensure that persons with disabilities feel welcome in that environment. Training should be made available to managers and others, such as selection board members, on the duty to accommodate." (and) "Although this policy applies only to employees of, and candidates for positions in, the federal Public Service, managers and others are expected to abide by the spirit of the policy when dealing with other persons who work for the federal Public Service, such as students and locally engaged staff."
Objectives of this Information Session
This information session, manual, and additional support tools are for employees of the Federal Public Service who:
- Must accommodate (other employees and potential employees) in accordance with Canadian legislation and federal government policy;
- need accommodation themselves;
- are expected to interpret the policy and ensure its effective application.
The objectives of these sessions are to:
- help participants understand, interpret and implement the "Policy" effectively and consistently across Canada
By the end of this session, participants will:
- Be able to describe what "workplace accommodation" is;
- Be familiar enough with the "Policy" to begin implementing workplace accommodation procedures and practices effectively;
- Know what the law says about "The Duty To Accommodate";
- Identify the roles of various persons in the accommodation process;
- Develop strategies for dealing with more significant challenges in discharging obligations at work;
- Learn one or more model for putting the policy into action;
- Find out where to go for support and assistance in addressing workplace accommodation issues.
Support documents regarding the policy and its implementation, copies of this manual, and tips for facilitating this workshop are available. For accommodations:
In The Workplace see Treasury Board Secretariat web site: www.tbs-sct.gc.ca
During The Staffing Process see Public Service Commission www.psc-cfp.gc.ca
Section 1: What Is "Accommodation"?
In this section we:
- Explore participant's awareness about "workplace accommodation";
- Define "accommodation," and other key terms in the "Policy";
- Discuss some of the different types of accommodation.
Exercise 1: What is "Accommodation?"
What thoughts and feelings do you associate with the term "workplace accommodation?"
In its broadest definition, "accommodate" means to "fit to, or adapt". Accommodation starts with designing work environments and procedures that include everyone. When this design is not enough to meet unique individual needs, additional accommodations may be needed. It is about what can be done to our work environment so that we can do our work more effectively. This policy addresses accommodation within the context of the unique needs of persons with disabilities.
Examples of types of accommodation:
- altering furniture and equipment;
- making changes to the facilities and physical work site;
- offering flexible work arrangements;
- providing alternate ways of communicating;
- altering aspects of our jobs;
- altering policies, procedures, or systems;
- providing recuperation and rehabilitation time;
- giving access to developmental positions and other more suitable jobs;
- providing temporary assistance from other employees.
Describe one way in which (a) you have received an "accommodation" for your unique work needs, and (b) an accommodation has been provided to a colleague of yours.
Describe one way in which you have provided an accommodation to an employee.
What is accommodation?
Accommodation means designing work environments that are barrier-free, so that everyone is given the opportunity to perform to their potential. When the designs are not enough and individuals need accommodation, it also means making adjustments or alternative arrangements, or changing a rule or a practice in order to remove discriminatory effects.
Treating people with unique needs, especially persons with disabilities, in exactly the same way as the general population often does not eliminate discrimination, and frequently adds barriers. Sometimes an accommodation is needed in order to be fair and equitable, both of these are fundamental Canadian values.
When accommodating a person with a disability, whether in the design or as an adaptation, three principles must be kept in mind:
- Fairness: We must give every employee and candidate a reasonable opportunity to perform or demonstrate competencies. Merit can only be demonstrated after this first principle is met.
- Quality: We do have to alter the nature or level of performance or qualification that is essential to the work.
- Uniqueness: Needs are often unique situations different due to the circumstances and people involved. Accommodation therefore requires a case by case assessment. Avoid acting on assumptions.
The following pages highlight the parts of the "Policy" that elaborate on:
- examples of disabilities (see Annex A of the Policy);
- relevant definitions;
- types of accommodation in both the staffing process and the workplace;
- other matters to consider; and
- usual costs and expected benefits of accommodation.
Annex A Guideline: Examples of Disabilities
Determining what is a disability depends on the circumstances of each case. The following have been found to be disabilities:
- blindness or other severe visual impairment
- deafness or other severe hearing impairment
- mobility impairment
- chronic pain
- environmental sensitivities
- learning disabilities
- speech impairment
- chronic conditions, such as diabetes
- psychiatric disabilities
- developmental disabilities
- other permanent or temporary conditions that cause pain or limit or restrict activities
For more information on specific disabilities, see internet web sites for - Canadian Health Network (CHN) www.nbeastersealmarchofdimes.ca/chn/Network_Contributors.htm
Accommodation is defined as the design and adaptation of the work environment to the needs of as many types of persons as possible and, according to the Supreme Court of Canada, refers to what is required in the circumstances of each case to avoid discrimination.
Persons with disabilities as defined by the Employment Equity Act, are persons who have a long-term or recurring physical, mental, sensory, psychiatric or learning impairment and who:
consider themselves disadvantaged in employment by reason of that impairment or believe that an employer or potential employer likely would consider them disadvantaged in employment by reason of that impairment.
These would include persons whose functional limitations owing to their impairment have been accommodated in their current job or workplace.
For the purpose of this policy, persons with disabilities do not have to fall strictly within this definition.
Annex A Guidelines: Examples - Types Of Accommodations:
During the selection process, a person's qualifications must be assessed after the person has been accommodated.
Types of accommodation during the selection process may include, but are not limited to:
- providing information about the position in multiple formats for candidates who are blind or visually impaired;
- ensuring that applicants who are deaf or hearing impaired can make inquiries via a TTY number or fax;
- allowing extra time, where appropriate, for tests or exams; and
- ensuring that the interview site is physically accessible.
Alternate formats can include:
- braille documents;
- large print documents;
- electronic versions of documents.
Barriers are physical barriers, as well as formal or informal policies and practices that restrict or exclude persons in the designated groups from employment opportunities in the federal Public Service.
Candidates includes applicants from outside the federal Public Service, as well as existing employees who are participating in a staffing process.
Facilities include premises and equipment.
Staffing and selection processes include open, closed or without competition staffing actions that result in a permanent or temporary appointment or deployment.
These processes encompass all related activities such as establishing qualifications, advertising, assessment, giving notice that an appointment or deployment has been made, recourse and disclosure, as well as any related communications with candidates.
Systems include information systems and employment systems (such as policies, practices, directives and guidelines).
Types of accommodation in the workplace may include, but are not limited to:
- attendant services;
- adaptive technology;
- changes to work sites;
- flexible work arrangements, including but not limited to telework, task modifications or other alternative work arrangements;
- converting printed matter to alternative media and reader services for employees who are blind;
- providing work space and furnishings appropriate to the nature of the disability;
- providing interpreters for deaf and hearing-impaired employees; and
- adapting training programs to the needs of employees with disabilities, including those with learning disabilities.
For more ideas and help, see:
- Assistive Devices Industry Office of Industry Canada strategis.ic.gc.ca
- Environment Canada Adaptive Computer Technology (ACT) Program www.ec.gc.ca/act-tia/
Adaptive technology consists of work-related devices or equipment that allow employees with disabilities to participate as fully as possible in the workplace and include items such as magnification software and hardware, voice recognition software and augmentative communication devices.
Attendant services refers to the provision of services to persons with disabilities who require assistance with the duties of their position, as well as assistance with activities of everyday living during the employees' hours of work.
Employees includes full-time, part-time, casual, seasonal, term and indeterminate employees.
Employment and employment -related opportunities includes appointments, promotions, deployments, secondments, assignments, training and career development opportunities.
Flexible work arrangements include but are not limited to tele-work and compressed work weeks.
Work-related events includes meetings, training programs, conferences, retreats, seminars, social events and information sessions, whether conducted inside or outside the workplace.
Annex A Guidelines: Other Matters
Attendant and other services: The contracting department should refer to the standard clauses established by Public Works and Government Services Canada for inclusion in contracts for attendant and other services.
Travel status: When employees with disabilities are on travel status and suitable attendant services cannot be provided, or the services of a travel companion are required, a separate contract may be necessary and the service shall be provided at the department's expense.
Parking requirements: Departments and agencies are responsible for setting parking rates for government-owned or leased parking lots. Departments should determine whether it is appropriate to charge parking fees to employees with a disability who are unable to use public transit, and, if so, what those fees should be.
Who Pays For The Accommodation?
Departments provide and pay for technical aids, equipment and services for employees with disabilities as well as repairs to such aids and equipment, (to the point of undue hardship.) Some departments have established a central pool of funds available to all managers to share the cost of accommodation. In other departments, managers are expected to pay for accommodation directly from their budgets. Each department can decide how it will approach this issue. As there are many ways of addressing the issue of funding, departments will deal with the issue in the way that works best for them in keeping with the intent and spirit of the policy.
Appendix A Guideline:
"Departments and agencies are expected to integrate into their budgets and financial planning exercises the resources necessary to accommodate their employees. When considering cost, it should be kept in mind that in many cases the cost will be amortized over the employee's entire career. Also, there are many payment options available, include leasing, for any necessary equipment."
Experience tells us that the cost of most accommodations is reasonable. See the following chart for an overview of the usual costs and benefits of accommodation.
What Does Accommodation Cost?
The Job Accommodation Network estimates that the costs of accommodation were as follows (1999):
- 20% of all accommodations are cost-free (although many accommodations are not in and of themselves costly, it is expected that there will be a departmental contribution in terms of the time allotted for the implementation of the policy)
- 51% of all accommodations cost less than $750.
- The average cost of all accommodations is $1850.
In their publication, "Barrier-Free Employers", the Canadian Human Rights Commission (CHRC) to says, "…employers can accommodate most adaptation needs for $500 or less. These costs are even more reasonable when you consider them amortized over the entire duration of the employee's stay in your organization."
See internet web site: www.chrc-ccdp.ca/discrimination/barrier_free-en.asp
What Benefits Come From Accommodation?
Accommodation supports an inclusive, barrier-free, and fair work environment. This has "bottom-line" consequences to operational costs:
- fewer sick days are used
- less time and money is spent on formal resolution processes (grievances, tribunals, etc.)
- an estimated 5 years is added to the working life of employee
- broader talent pool for recruits
- avoid the cost of replacement (estimated to be, on average, one year's salary for the position.)
- the workplace is more creative in its problem-solving and planning
- clients are more easily understood and better served.
How does your Department or agency handle the funding of accommodations for persons with disabilities?
Section 2: The Policy and its Legal Grounds
In this section we will:
- become familiar with the Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service
- better understand the legal grounds for the policy
- define the terms "duty to accommodate," "undue hardship," and "bona fide occupational requirement," and what these mean for us as employers and employees.
Note: Examples of legal precedent will be used only to illustrate the meanings of terms. Each situation is different, and these examples are not to be assumed as legal advice for your specific set of circumstances. Inquiries about a particular case should be directed to human resource or employment equity personnel in your department or agency.
It is the policy of the Treasury Board and the Public Service Commission to create and maintain an inclusive, barrier-free environment in the federal Public Service to ensure the full participation of persons with disabilities.
This policy is to be implemented by:
- identifying and removing barriers to employment, career development and promotion of persons with disabilities unless doing so would result in undue hardship;
- designing all employment systems, processes and facilities to be accessible by building accommodation into workplace standards, systems, processes and facilities; and
- accommodating individuals when such barriers cannot be removed. Such accommodation must be made to the point of undue hardship taking into consideration issues of health, safety and cost. Accommodation must also be based on the circumstances of each case and must respect an individual's right to privacy and confidentiality.
I. Legal Grounds
Workplace accommodation is not a courtesy -- it's the law. Three major legal developments have taken place that have had great implications for people with disabilities:
- the Charter of Rights and Freedoms;
- the Canadian Human Rights Act; and
- the Employment Equity Act.
1) The Charter of Rights and Freedoms, in essence, states that everyone is equal before the law, and has the right to equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. This is outlined in section 15 of the Charter.
See Dept. of Justice Canada laws.justice.gc.ca/en/index.html
This policy is consistent with fundamental Canadian legal principles. The Canadian Charter of Rights and Freedoms guarantees certain democratic rights to all persons and prohibits discrimination on the basis of physical or mental disability. In several cases, Canadian courts have emphasized that accommodation is an essential means of ensuring the equal participation of all persons in all sectors of Canadian society.
2) The Canadian Human Rights Act (CHRA) requires federal government departments and federally regulated organizations to provide workplace accommodation to anyone protected by the law unless doing so would result in undue hardship. This is commonly referred to as the "duty to accommodate" and is detailed in sections 2 to 15 of the Act.
Under the Canadian Human Rights Act, employers must accommodate individuals and groups of individuals to the point of undue hardship considering issues of health, safety and cost.
See CHRC, "Click" Legislation and Policies www.chrc-ccdp.ca/legislation_policies/default-en.asp
3) The Employment Equity Act (EEA) requires employers to achieve a representative workforce by developing and putting into effect an employment equity program that removes barriers for women, members of visible minorities, Aboriginal persons, and people with disabilities. The EEA also requires the accommodation of all four designated groups.
The Employment Equity Act requires the reasonable accommodation of persons with disabilities and others within the federal workplace. The Act also requires employers to identify and remove barriers to the employment of persons in designated groups.
Under the Employment Equity Act, the Treasury Board and the Public Service Commission share employer responsibilities to the extent of their authority under the Financial Administration Act and the Public Service Employment Act. This policy therefore sets out the requirements for the Treasury Board, the Public Service Commission and their delegates.
See CHRC, "Click" Legislation and Policies www.chrc-ccdp.ca/legislation_policies/default-en.asp
II. Duty to Accommodate
"Duty to accommodate refers to the obligation of an employer, service provider, or union to take appropriate steps to eliminate disadvantage to employees, prospective employees, or clients resulting from a rule, practice or physical barrier that has or may have an adverse impact on persons with disabilities."
Canadian Human Rights Commission
See CHRC, "Click" Legislation and Policies www.chrc-ccdp.ca/legislation_policies/default-en.asp
The duty to accommodate is the single most important factor to positively affect the participation of people with disabilities in the workplace. The meaning of the duty to accommodate up to the point of undue hardship continues to evolve through legal interpretations of tribunals and courts. The law requires that an employer will provide accommodations unless it can demonstrate that the provisions of those accommodations would cause an undue hardship. In the absence of being able to prove undue hardship, the employer or service provider would not be able to establish a defence against a claim of discrimination.
- Extent of the Duty to Accommodate
According to the Supreme Court of Canada, barriers to participation for persons with disabilities must be eliminated from policies, rules, standards and practices at the design stage. Employers cannot rely on accommodating individuals after the fact but must build accommodation into their policies or practices, as far as possible, to the point of undue hardship.
When the need does arise to accommodate an employee, an employer must determine:
- Can the person perform the job as it exists?
- If no, can the person perform the job if it is modified by re-bundling duties, re-training, or through some other accommodation?
- If no, can the person perform another job in its existing or accommodated form?
For legal precedents, see internet web site: www.workink.com
- Limits of the Duty to Accommodate
The duty to accommodate is not limitless. Accommodation always requires a balancing act between the rights of an employee with a disability to equal treatment, and the rights of an employer to operate a productive workplace. The employer is not required to:
- accommodate where undue hardship would result;
- create an unproductive position;
- keep someone who is unable to meet their employment obligations despite accommodations; or
- hire someone who, after being accommodated, did not meet the qualifications.
Note: The "nature" or "level" of qualifications and requirements must not be altered by accommodations. Employees, once accommodated, are expected to meet bona fide occupational requirements and standards. Likewise, candidates are not exempted from meeting bona fide occupational qualifications.
- When It Appears That The Duty To Accommodate Has Not Been Met:
The onus is on the complainant first to make a prima facie case of discrimination. Complainants must be able to show that they were denied a job or a service, or discriminated in employment or in the provision of a service due to their disability, or on the basis any other ground protected by the Charter of Rights and Freedoms. Once that is done, the onus shifts to the Respondent to establish a justification for the discrimination.
III. Undue Hardship
"[In order to establish an exception to the duty to accommodation] ...it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost."
Canadian Human Rights Commission
Undue hardship occurs if accommodation would create onerous conditions for an employer or service provider, especially regarding health, safety and cost. In addition, in Central Alberta Dairy Pool, supra, the Supreme Court listed some other factors that might be relevant to determining whether the hardship resulting from an accommodation measure should be considered "undue" (D/438, para. 63):
- disruption of a collective agreement;
- problems of morale of other employees;
- interchangeability of work force and facilities.
For full details on this case, see www.workink.com
We will briefly look at these factors, as well as how the size of the operation influences what may be considered as "undue hardship." Remember that the onus is on the employer to prove "undue hardship." Jurisprudence continues to redefine the interpretation of what factors are most relevant in assessing undue hardship in a given context. Several factors have been examined, including the following:
- Health and safety concerns:
The issues to examine here are whether the proposed accommodation would pose a safety risk to:
(i) other employees or
(ii) the employee seeking an accommodation.
For example, if an employee with a significant substance abuse problem operates safety-sensitive equipment (i.e., a forklift in a warehouse), then the employer may be justified in relying upon the potential danger to other employees, or even to the employee himself or herself, as a compelling undue hardship factor. However, if the only safety issue is to an employee himself or herself, then the undue hardship threshold will be usually much higher.
Where health and safety is a concern, both the level of risk and who bears that risk must be considered.
- Will the accommodation violate health and safety regulations?
- What are the liability implications?
- Who can I go to for advice?
Co-worker morale problems that can be directly linked to the accommodation could also be grounds for undue hardship due to health and safety reasons. For example, modifying the job duties of one person to accommodate them may create a health or safety risk for other employees. This may be due to the negative impact of increased workload, a higher proportion of heavy duties, or unreasonable overtime.
- Financial costs:
Financial costs must be so significant that they would substantially affect the viability or productivity of the employer (or service provider) responsible for the accommodation. When considering "Financial costs" as grounds for undue hardship, these items usually cannot be included:
- the expense of complying with other legislation or regulations, such as building codes (e.g., providing wheelchair accessible washrooms);
- overtime or leave costs that the employer can tolerably bear;
- expenses incurred to respond to a grievance or a minor disruption to a collective agreement.
The size of the employer affects the case for undue hardship. The larger the operation, the more likely it is that it can afford to support a wider range of responses for a person seeking accommodation, as it can more easily absorb the cost of accommodations and amortize these costs.
- Disruption of operations:
An accommodation could be such an inconvenience that it would prevent the employer or service provider from carrying out essential business. For example, modifying a workspace in a way that substantially interferes with workflow and reduces efficiency may be considered disruptive to a point of undue hardship.
- Substantial interference with the rights of others:
A proposed accommodation should not interfere significantly with the rights of others or discriminate against them. The objections of others must be based on well-grounded concerns that their rights will be affected. For example, a substantial departure from the terms of a collective agreement could be a serious concern.
Note that unions can also be liable if they unreasonably block an employer's attempt to accommodate a person, or create barriers through the negotiation of contracts or design of union procedures.
- Interchangeability of work force and facilities:
This refers to whether an employer could reasonably relocate employees to other positions on a temporary or permanent basis. This usually is easier for a larger company.
- Example of undue hardship proven by the employer:
Undue hardship is very hard to prove for an organization as large, diverse and financially sound as the federal government. However, where the employer can demonstrate that it has explored every available, reasonable step to provide an accommodation short of undue hardship, then the duty to accommodate will usually demand no more.
Example: Holmes v. Attorney-General of Canada.
A pay clerk (CR-03) working for the federal government developed severe numbness and pain in her right shoulder, making it difficult to perform her duties. After trying to accommodate her, Holmes was released because of incapacity to perform her duties. She filed a complaint with the Canadian Human Rights Commission, which found that the employer had taken reasonable steps to accommodate her. On judicial review of the Commission's decision, the Federal Court, Trial Division upheld the denial to take the complaint to the CHR Tribunal. The Holmes case is one specific to the Federal Public Service. There are also a number of more recent cases.
In its decision, the Court noted that the Department had, prior to recommending that she be released, taken the following steps:
Assigned Holmes other duties as a receptionist. This proved to be unsatisfactory, as Holmes was unable to handle a typing load.
For almost one year, assigned her only limited and lighter duties as a pay clerk.
Assigned Holmes to a special project to facilitate her recovery, and provided her with an adjustable chair, an adjustable monitor screen arm, step stools, a tray to raise her keyboard and push carts for moving files. She still could not keep up with the work demands.
Had Holmes assessed twice by Health Canada, who said Holmes could do sedentary work, and could do her substantive duties on a part-time, reduced basis. Holmes' physician disagreed, but said Holmes was capable of regular, gainful work in another placement.
Again, assigned Holmes only light duties. Nevertheless, on many days, she was unable to perform any of her duties;
Met with Holmes about other work options and offered Holmes three hours per day for a period of three weeks to undertake either a job search or a recommended rehabilitation program. She was asked to present the Workers Compensation Board with a rehabilitation program but did not, so her case was closed.
Tried to find Holmes another job by placing her resume on the Departmental Transfer Inventory at the Public Service Commission. All vacant positions within the Department for which Holmes was qualified were reviewed. However, all concerned concluded that these positions required the use of the same muscles as those employed in her substantive position.
The Federal Court stated that the undue hardship standard: "…does not require that an employer act as a placement officer or create a new position expressly for the disabled employee comprising new duties that were previously non-existent and that do not suit its need…(and) …The employer's obligation is to make a genuine effort to accommodate an employee, efforts that are consistent with the type of work for which the worker was hired."
IV. Bona Fide Occupational Requirement (BFOR)
The law recognizes that, in certain situations, a limitation on individual rights may be reasonable and justifiable. Discrimination or exclusion may be allowed if an employer can show that a discriminatory requirement of a job is essential for performing that job. For example, to perform the job of driving a truck safely, persons employed as drivers must meet vision standards and have an appropriate driver 's license. A legally blind person would be legitimately excluded from a position as a truck driver since he/she cannot meet these two bona fide occupational requirements. The onus is on the employer to prove a BFOR if the complainant shows a prima facie case of discrimination.
Bona fide occupational requirements, according to the Supreme Court of Canada, are those requirements that:
- the employer has adopted for a purpose or goal that is rationally connected to the functions of the position;
- the employer has adopted in good faith, in the belief that they are necessary to fulfill the purpose or goal; and
- are reasonably necessary to accomplish the purpose or goal in the sense that the employer cannot accommodate persons with the characteristics of a particular group without incurring undue hardship.
The above ruling emerged from the landmark Meiorin v. The Government of British Columbia case, and is now the test for determining which occupational requirements are reasonable and justifiable. The test requires that employers take into account the capabilities of different members of society before adopting a bona fide occupational requirement or qualification, and before adopting standards and tests to evaluate a person against this BFOR. This does not mean that the employer cannot set standards, but it does mean that the standards must only reflect the true requirements of the job.
In Grismer v. B. C. (Superintendent of Motor Vehicles) the court extended the Meiorin ruling to those providing services to clients, and ensures that each person is assessed according to his or her own personal abilities rather than presumed group characteristics. Green v. TBS, PSC and HRDC applied the Grismer precedent and found that the PSC had not met their "duty to accommodate" Green's dyslexia in the language diagnostic testing process.
For details on these cases, see internet web site: CHRC, "Publications" www.chrc-ccdp.ca/publications/employment_equity-en.asp
Appendix A Guideline: "If provision for accommodation has not been incorporated into the policy or standard then the policy or standard is not a bona fide occupational requirement."
a) Evaluation of a bona fide occupational requirement
To meet the three-step test to prove a BFOR, employers should expect a court or tribunal to ask for solid answers to questions such as:
Rational connection to the performance of the job
- What is the purpose of the policy or standard -safety, efficiency, other? Evidence may include public statements or documents and internal documents that provide information about the work.
- What are the objective requirements of the job?
Evidence may involve identifying the jobs to which the policy or standard applies and identifying the duties involved in these jobs.
- Is there a rational connection between the general purpose of the policy or standard and the objective requirements of the job?
- Is there a way to do the job that is less discriminatory while still accomplishing the employer's legitimate purpose?
Honest and good faith belief that the requirement or standard is necessary
- What are the issues and circumstances that led to the adoption of the policy or standard?
- When was the policy or standard created, by whom, and why?
- Was the standard or policy based on assumptions about a particular group?
- Is there evidence that the standard or policy treats a particular group more harshly than another without apparent justification?
- Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
- If alternative standards were investigated and found to be capable of fulfilling the employer's purpose, why were they not implemented?
- Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
- Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
- Is there any evidence that the legitimate purpose could be accomplished through a less discriminatory approach?
- Is there accommodation to the point of undue hardship?
- Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles?
V. Failure To Accommodate
What are the potential consequences of failing to accommodate?
If the employer or service provider fails to provide accommodation to the point of undue hardship, then the employer or service provider may be in contravention of the Canadian Human Rights Act, and the person seeking accommodation may file a complaint with the Canadian Human Rights Commission.
If, on the other hand, the person seeking accommodation refuses a reasonable and appropriate accommodation, the employer or service provider has likely met their legal burden.
Section 3: Responsibilities and Expectations
In this section we will:
- review the roles and responsibilities of the key people involved in the accommodation process;
- identify where some of the greatest challenges are in performing these roles in our current work environment;
- share strategies and best practices in overcoming these challenges.
I. Highlights of the policy
In the following three pages are the responsibilities listed in the policy for:
- Selection and Assessment Accommodation:
- Public Service Commission and
- Workplace Accommodation:
- Treasury Board Secretariat
- Deputy Heads and Delegates
- Employees Needing Accommodation
In addition to those identified in the policy, we also include:
- Unions and Professional Associations
This will be a discussion with the same group you worked with previously.
Focus question: "Given these responsibilities, what will help you and what might hinder you in implementing the accommodation process?"
Be ready to report on one very important "helper - one thing that will work for you;" and one "hinderer - one major challenge you might face".
Policy Requirements: Selection and Assessment - Responsibilities
The Public Service Commission and/or its delegates will:
- ensure that Standards for Selection and Assessment do not discriminate on any prohibited ground of discrimination, including disability, unless the requirement is a bona fide occupational requirement;
- ensure that all employment opportunities are advertised in an accessible format;
- ensure that assessment methods or tools used in the staffing process, including tests and interviews, accurately assess the qualifications required, do not constitute barriers and assess candidates fairly;
- ensure that the second language evaluations and language training programs do not contain barriers;
- inform all candidates of this policy and the procedure for obtaining accommodation during the staffing process;
- inform all candidates, in a timely fashion, of the type or nature of tests or other evaluation methods that will be used in the selection process to allow the candidates to make an informed request for appropriate accommodation;
- if necessary, consult appropriate health care professionals and others, with the candidate's consent, to determine the accommodation appropriate to that person;
- respect candidates' right to privacy and confidentiality; and
- accommodate candidates with disabilities up to the point of undue hardship.
Candidates in a selection process must:
- inform the Public Service Commission or departmental staffing representative of any accommodation required in a timely fashion so that appropriate accommodation can be arranged and collaborate with departmental representatives in finding the most appropriate accommodation.
Workplace - Responsibilities
The Treasury Board Secretariat will:
- inform all departments of this policy;
- provide interpretation and guidance to departments with respect to the requirements of this policy; and
- undertake a comprehensive review of the provisions and operation of this policy within five years of its coming into effect.
Policy Requirements: Workplace - Responsibilities
Deputy heads are responsible for the implementation of this policy within their departments. They and their delegates must:
- create and maintain an inclusive, barrier-free work environment that is accessible;
- inform all employees of this policy and the procedure for obtaining accommodation;
- ensure that employment opportunities are advertised in an accessible format;
- ensure that all managers within a department abide by this policy;
- make available the resources necessary for implementing this policy;
- examine all systems to identify any barriers to employees with disabilities, and remove those barriers;
- when barriers cannot be removed, accommodate individual employees with disabilities up to the point of undue hardship;
- consult employees with disabilities, including employees with learning
disabilities, with respect to:
- any design, changes or upgrades to physical structures, new or existing systems or equipment so that the workplace is accessible to employees with disabilities; and
- the planning and design of work-related events and conferences so that all events and opportunities are accessible to employees with disabilities;
- provide training to employees with disabilities on the use of any new or upgraded equipment or systems;
- ensure that employees with disabilities are provided with information in a timely fashion and a usable format;
- after general barriers have been removed and general accommodation measures have been put in place, proceed with individual accommodation requests of persons with disabilities by:
- consulting with the employee to identify the nature of the accommodation;
- if necessary, consulting appropriate medical and rehabilitation advisors and others, with the employee's consent, to determine the accommodation appropriate to that person; and
- accommodating the employee;
- consult and collaborate with bargaining agents or other employee representatives where accommodation affects other employees or where the employee being accommodated requests that the bargaining agents or other employee representatives be consulted;
- provide and pay for technical aids, equipment and services for employees with disabilities as well as repairs to such aids and equipment;
- respect individuals' right to privacy and confidentiality; and
- allow employees with disabilities to retain technical aids, equipment and support materials should they move to another position within the federal Public Service and accommodation is still required.
- inform their supervisors of their employment-related needs;
- collaborate with the department or its representatives in finding the most appropriate means to accommodate their employment-related needs; and
- notify the department when attendant or other services, technical aids or equipment are no longer needed, and return the equipment.
While the person seeking accommodation has a right to privacy, the employer or service provider has a right to, and a need for, information that can help determine appropriate accommodation measures.
The manager/human resource advisor is not entitled to confidential medical information. Employers may request information about:
- the prognosis for recovery;
- the employee 's readiness to return to work;
- the employee 's ability to perform specific components of the pre-injury job;
- the likely duration of any physical or mental limitations following the employee's return to work.
Note: Medical information should only be provided to a person in the department who is authorized to retain confidential medical information. This information should not go on the person's file.
It is the employee 's responsibility to provide information that will help assess an accommodation request.
Responsibilities of other key people:
Not named in the policy, but important to the success of many accommodation measures are: unions and professional associations; and the co workers of the person needing accommodation.
Unions and professional associations
are expected to:
- support the employer to fulfill its proactive duty to design workplace requirements and standards so that, from the outset, they do not discriminate;
- represent the needs of the individual for accommodations, when requested by the employee;
- model a problem-solving approach to accommodation;
- follow-up after the accommodation is implemented to assess whether it is working and to help address any associated issues that may surface;
- ensure collective agreements do not, in themselves, create barriers to full participation and productivity.
are expected to:
- act towards other individuals professionally and respectfully;
- be informed of the Treasury Board policy;
- raise work performance issues, and give non-judgmental feedback about what they observe in the workplace and the impact of an accommodation on productivity and quality of service;
- give ideas on, or participate in a problem resolution process to facilitate an accommodation when the accommodation may have a significant impact on their own work or work environment;
- respect the dignity, privacy and confidentiality of the person needing accommodation. Co-workers have no right to know the details of another person's disability or why they need accommodation.
Section 4: The Accommodation Process
In this section we will:
- introduce one model to guide the accommodation process;
- provide policy guidelines to support this model;
- identify in each step where we need to pay the most attention.
I. The Accommodation Process Model
The Accommodation Process is similar to other effective decision-making models. Accommodation relies on good leadership, good communication, openness, creativity, flexibility, and emotional intelligence on the part of all people involved. The following model will help illustrate the flow of the accommodation process.
Annex A Guideline:
"Departments and agencies should develop their own internal procedures for dealing with accommodation requests, including mechanisms for resolving situations where accommodation is denied. All candidates and employees should be advised of such procedures."
Also see the Personnel Psychology Centre (PPC) of the PSC "Guidelines for Assessing Persons with Disabilities," for details and additional ideas on the accommodation process www.psc-cfp.gc.ca/ppc/disability/chap_1_e.htm
II. Steps In The Accommodation Process:
Throughout The Process: Create an inclusive work environment
An inclusive work environment is based on mutual respect and trust, so that challenging issues can be identified without fear of reprisal or embarrassment, and dealt with professionally. An inclusive work environment depends on intentional barrier-free designs, creative solutions to address individual accommodation needs, and clear, timely communication aimed at maximizing the performance of all employees, including those with disabilities.
Annex A Guidelines:
"The Treasury Board and the Public Service Commission are committed to an inclusive and barrier-free work environment in which all persons have equal access to opportunities in the federal Public Service and appointments are based on merit. Creating such a work environment requires that differences are accommodated before the merit assessment is undertaken and that assessment and evaluation tools are inclusive and barrier-free. (and) The corporate culture of a department or agency can ensure that persons with disabilities feel welcome in that environment. Training should be made available to managers and others, such as selection board members, on the duty to accommodate."
Whenever possible, a department should plan the design or redesign of a system or a procedure or a physical facilities with as many types of people as possible in mind. This could avoid having the trouble and/or expense of rectifying systems later. Departments may wish to consult with experts and with persons with disabilities either through the department's committee for persons with disabilities or by contacting an appropriate association in the community.
See TBS web site: www.tbs-sct.gc.ca for the publication, Creating a Welcoming Workplace for Employees with Disabilities and TBS Topic A-Z, "Inclusiveness" www.tbs-sct.gc.ca/tbsimScripts/topic-sujet-list-eng.asp?ID=418&view=expand
and CHRC Publications, A Place For All - A Guide to Creating an Inclusive Workplace; and A Guide to Screening and Selection in Employment www.chrc-ccdp.ca/discrimination/place_for_all-en.asp
Step 1. Recognize the need for accommodation
To recognize a need, employers, employees and potential employees must be ready to listen to each other respectfully and be watchful for signals that may indicate that an accommodation is required. Often people are uncomfortable in identifying that they have accommodation needs for fear of identifying as someone with a disability. This can lead employers to think that there is no issue or no urgency in responding. Often the issue gets raised due to changes in behavior or performance, and we have to be aware that the cause of the change may well be due to a need for accommodation.
This demands an awareness by all people involved of:
- the thoughts and feelings that are aroused in us when a person needs or requests an accommodation;
- the interpretations and assumptions that we may make about the other people or the situation, and that need to be checked out before we act;
- our own needs and the needs of others who may be affected by the accommodation.
a) Expectations of The Person Needing Accommodation
People who face a disadvantage caused by the facilities, equipment, application of a rule or practice may need accommodation in order to overcome this disadvantage. A request for accommodation need not be in writing, but should be communicated as clearly and specifically as possible. For example:
- Explain why the accommodation is required;
- Be specific about our need for accommodation. Exactly what barrier or disadvantage do we need to overcome to be able to perform to our potential (for example, to be able to read the computer screen more easily and quickly?);
- Indicate approximately how long the accommodation will be required, if known;
- If available, support the request for accommodation with evidence or documents -such as written statements from health care providers. (If there are concerns for confidentiality, contact the PPC);
- Recommend any appropriate accommodation measures.
Annex A Guideline: "To implement employment equity, the federal Public Service encourages and promotes members of designated groups to identify themselves. However, an employee does not have to self-identify as a person with a disability in order to be accommodated or to have accommodation offered to him or her. The self-identification process is voluntary and the information obtained from it is confidential. No one can be forced to self-identify to receive accommodation or after he or she has been accommodated."
b) Expectations Of The Employer (or Service Provider)
If the employer receives a request for accommodation, he/she should:
Be aware that the onus to accommodate is on the employer or service provider, once a request is received;
Make time to listen to and really understand the needs of the person seeking accommodation and consider their suggestions for accommodation;
Review any evidence that the person seeking accommodation provides to support the request for accommodation, for example, medical documents;
Be willing to take substantial and meaningful measures to accommodate the needs of the person seeking accommodation.
Annex A Guideline: "A request for accommodation need not be in writing, but should be communicated as clearly and specifically as possible. The person to whom the request has been directed should do the following.
- Determine the type of accommodation required, based on information provided by the candidate or employee.
- If the candidate or employee does not know what type of accommodation is required, consult experts in the field to determine the appropriate accommodation. This could include the person's own physician, psychologist or centres of expertise within the Public Service Commission or the accommodating department.
- Provide the accommodation based on the request of the person being accommodated, or, if necessary, on the advice of experts."
The employer is also expected to offer accommodation if they are uncertain about a person's need for accommodation, or have become aware of changes in behavior and performance that could indicate a need for changes.
Annex A Guideline: "The accommodation process should be as uncomplicated as possible and should respect the dignity and privacy of the person being accommodated. This can be accomplished if, at the time any person applies for a position, he or she is asked whether or not accommodation is required. The inquiry should be made again at the time of appointment or at the beginning of any other staffing process." (and)
"Under certain circumstances, employers may be required to offer accommodation to an employee even though the employee has not requested accommodation. Such situations should e handled with the utmost consideration for the privacy and dignity of the employee and managers may wish to obtain confidential, expert advice from within their departments or from the Treasury Board Secretariat or the Public Service Commission before proceeding."
Step 2. Gather Needed Information
Before any decisions are made, relevant information must be acquired so that decisions are made to ensure the most appropriate accommodations under the circumstances are provided.
a) About The Work Environment
An assessment of the job and the work environment will often reveal where the causes of the barriers are, and where the most effective, practical and cost-efficient changes can be made. Assess:
- the current job of the person needing accommodation and how it can be modified;
- current policies and practices (for example, an office policy that prohibits eating or drinking at an employee's desk may be modified if the person is diabetic);
- the facilities and equipment.
b) About The Person Needing Accommodation
More information may be required on the person needing accommodation and the limitations and impacts that their disabling condition has on their work.
The Personnel Psychology Centre (PPC) of the PSC has the Guidelines for Assessing Persons with Disabilities, available on the PSC website at: www.psc-cfp.gc.ca/ppc/disability/chap_1_e.htm
Appendix A Guideline:
"Persons requesting accommodation may be asked to provide documentation from a qualified health care professional to clarify the limitations caused by the disability and/or the type of accommodation that would be most effective.
Any medical records provided should be kept strictly confidential and separate from personnel files. Requests for this type of information should come from personnel designated to deal with accommodation requests and trained to handle potentially sensitive medical information."
Step 3. Make An Informed Decision
Now that the situation has been defined and assessed, a decision must be made. Steps 1 and 2 will help determine the criteria to use for the decision and the boundaries for the decision. These criteria must be clear and easy to communicate to others who might be interested in the outcomes or the process used to reach those outcomes. If not, then the issue must be redefined and clarified before going on.
- The person needing accommodation is expected to:
- Allow a reasonable amount of time for the employer or service provider to reply to the request for accommodation;
- Listen to and consider any reasonable accommodation options that the employer or service provider proposes;
- Consult an expert such as a human rights officer, human resources officer, union representative or lawyer if it is difficult to determine if the proposed options are reasonable.
- The employer is expected to:
- Consult an expert such as a human rights officer, human resources officer, or lawyer if more information is needed to assess the request;
- Be flexible and creative when considering and developing options;
- Discuss options with the person who needs accommodation;
- Take reasonable steps to accommodate the person seeking accommodation to the point of undue hardship. If full accommodation is not possible without undue hardship, the employer must suggest options that may partially meet the needs of the person seeking accommodation;
- Reply to the request for accommodation within a reasonable period of time;
- Make a formal agreement with the person seeking accommodation, preferably in writing, and ensure that the accommodation is given a fair opportunity to work.
- Who will be involved in the decision-making?
- Will the employer make the decision on their own, make the decision after consultations, or collaborate with others?
- Who will be involved and how?
- The answers to these questions will send a message to others about what is meant by "inclusion" in this organization.
- What are the options?
- Can the existing job or work environment be modified without causing undue hardship?
- Are other suitable jobs available?
- Is the person needing accommodation qualified? If not, how much training and development is required? Is this feasible?
Note: An employee should continue to receive the same rate of pay they received before the accommodation, unless their duties have changed significantly or the employer would experience undue hardship to maintain their rate of pay.
- What are the likely impacts of this decision?
A decision about accommodation means change, and change has implications on others - gains and losses.
- What are these implications?
- Will productivity and quality of work be affected?
- How will others likely respond, and how will this be managed?
- What needs to be in place to give this a good chance of working?
- How, if at all, does this influence the proposed decision?
See PSC Publications, "Strategic Thinking" www.psc-cfp.gc.ca/research/knowledge/strathink_e.htm
For major decisions with higher risk, see Health Canada's Decision Making Frameworks: www.hc-sc.gc.ca/hpfb-dgpsa/hcrisk_tc_e.html
Step 4. Communicate The Decision
This step can range from documenting the accommodation process privately, to holding a meeting to announce any changes that will impact on other employees. While the issues of dignity, privacy and confidentiality remain paramount, others need to know if they have new responsibilities, schedules, desk locations, etc.
- Develop a communication strategy.
- Who is the audience?
- What do they care about most? Communications must be made in terms that address the interests of the audience.
- What do they need to know and not need to know?
- What message do we want to communicate?
- What is the most effective way to deliver this news?
- What if the accommodation is denied?
Employers are expected to:
- Provide details that justify a refusal to accommodate, if accommodation is not possible because it poses undue hardship or because of a bona fide occupational requirement;
- Consult an expert such as a human rights officer, human resources officer, or lawyer before making a final decision.
Persons being denied accommodation are recommended to:
- Request details and evidence that supports the employer's claim of undue hardship or bona fide occupational requirement. Provide more details about your needs if such information is helpful;
- Consult an expert such as a human rights officer, human resources officer, union representative or lawyer if the rationale given does not seem reasonable.
Annex A Guideline: "Persons who are denied accommodation may also wish to use the recourse mechanisms set out in the Public Service Employment Act, or contact the Canadian Human Rights Commission."
Step 5. Implement and Monitor The Decision
Often the monitoring of progress is neglected. An effective action plan to implement an agreement not only includes the usual answers to the questions - who? what? where? when? how? - but also the plan for follow-up. This follow-up is intended to celebrate successes, adapt to new circumstances, and learn from what needs improving. Follow-up plans need answers to:
- When and how will we evaluate progress?
- What evidence will indicate that the accommodation is working?
- How do we wish to be held accountable?
- Persons receiving accommodation are expected to:
- Cooperate to make the agreement work;
- Advise the employer or service provider of changes in accommodation needs and attempt to agree on a modified accommodation arrangement;
- Be willing to review and modify the accommodation agreement if circumstances or needs change and the agreement is no longer working; and
- Tell the employer or service provider if the need to accommodate ends.
- Employers providing accommodation are expected to:
- Follow up to ensure that the accommodation meets the needs of the person seeking accommodation;
- Be willing to review and modify the accommodation agreement if circumstances or needs change and the agreement is no longer working; and
- Document and report accommodations, and be willing to share best practices in a confidential manner.
Section 5: Case Study
In this section we:
- practice applying what we've learned on a "life-like" scenario.
We will work in the same small teams of 6-8 people that we have been working with in previous exercises.
After reading the assigned case study, small groups will discuss the case. The purpose of the discussion in the small groups is to outline the first few steps you would take to address this situation, if you were faced with it. The plan may need to take into account the different needs of:
- the person needing accommodation;
- the manager;
- the co-workers who will be affected by changes;
- the union;
- the human resource or other experts that may be involved.
Also think about who you would involve at each step, and what key things you'd to pay the most attention to in this scenario.
After 20 minutes of small group work, we'll ask one of your group to report briefly on the conclusions of your discussion and what led you to these conclusions.
Reports must be limited to a maximum of 2 minutes.
Case Study #1: For General Audiences: Peter
Your Accommodation Advisory Team has been asked to give direction to the manager in this scenario.
In the last two years there have been many changes in the work unit. The Directorate has been restructured and this has changed the job functions from pre-planned "in person" meetings and written communications with colleagues and clients to a reliance on telephone and verbal communications. There have been three managers in the last two years, the newest manager arriving four months ago and having a clear priority of productivity. Due to the rapid changes going on, the newest manager relies on quick staff meetings to discuss the immediate priorities and work assignments.
One of the employees, Peter, is very intelligent and creative and has been part of the unit for 10 years. Peter has a learning disability that causes him difficulty in processing what he hears. He cannot understand and remember lengthy or complex verbal instructions. Peter has never disclosed his disability or unique needs, fearing that he would be treated differently and may have fewer opportunities if the managers and co-workers knew. Instead, he has found ways of compensating for his disability, such as being very attentive to non-verbal signals and ensuring written follow-ups on all interactions. His performance has been good until just recently. Lately Peter is not completing his assignments, as if he does not understand what decisions were discussed and agreed upon and what his responsibilities are.
This has caused some problems. He has given out confusing and conflicting information to the clients, resulting in client calls to the manager and other employees for clarification. Peter isn't getting his projects done on time, and co-workers who are relying on Peter's work to be done before they can complete their own, are getting behind. As well, his productivity has gone down, causing the manager to ask other employees to help out on Peter's workload to keep up the unit productivity, even if it means overtime.
Peter's co-workers didn't seem to mind helping out for a while, but it has persisted for almost three months and a few are beginning to talk about unfair workloads and that "not everyone is pulling their weight". One employee even complained to the manager, and when nothing changed, he brought up the issue of workloads to their union rep.
Team instructions are on the previous page in your Manual.
Case Study #2: For HR Audiences: Selection Process
Due to imminent retirements in the management level of your Department, the Director is planning for a large closed competition to identify suitable candidates for the management positions amongst current federal employees in your Region. She has asked your team to assist the Selection Committee by giving advice to ensure that all candidates who need accommodation for disabilities are accommodated throughout the process.
- What must the Selection Committee do or not do to meet the new policy requirements on accommodation?
- What are the areas or steps in the process that need the most attention?
Optional (time permitting):
- What gets overlooked most easily or is most likely to occur as a surprise?
- What signals will tell you the surprise is happening? How might these be handled?
- Who else needs to be involved to make this work well, and when and how would you involve them?
Manager's Handbook CHAPTER FIVE: EMPLOYMENT EQUITY; and the Personnel Psychology Centre (PPC) of the PSC "Guidelines for Assessing Persons with Disabilities," for details and additional ideas on the accommodation process www.psc-cfp.gc.ca/ppc/disability/chap_1_e.htm
Also see CHRC Publications, A Place For All - A Guide to Creating an Inclusive Workplace; and A Guide to Screening and Selection in Employment www.chrc-ccdp.ca/discrimination/place_for_all-en.asp
Case Study #3: For IT Audiences: Adaptive Technologies
The Deputy Head is planning to upgrade the IT system in order to support modernization of government initiatives.
Your team has been assembled to ensure that all technology and services purchased by the organization are accessible to people with visual impairments, or can be made accessible through the use of some adaptive technology within reasonable expense.
- What criteria, requirements or prerequisites need to be added to contracting documents to ensure that the purchases will be maximally accessible?
- What questions need to be asked of a supplier to ensure the mainstream products you are buying off the shelf will be useable by employees with disabilities?
- What steps in the systems development and testing process need particular attention?
- Who needs to be involved in this process, and how and when would you involve them?
For more information, see web sites for Assistive Devices Industry Office, Industry Canada www.at-links.gc.ca/as/ ;
Environment Canada Adaptive Computer Technology (ACT) Centre www.ec.gc.ca/act-tia/;
Case Study #4: For Materiel Management Audiences:
You are an advisory team to your Director on Workplace Accommodation.
An employee in the Directorate, Deborah, has had a recent injury. This has resulted in a physical disability that now causes her to use a wheelchair for mobility. Her work requires frequent photocopying of documents, usually ranging between 3-25 pages.
The photocopier for the office is kept in a small room at the other end of the office from Deborah's desk. The room is not accessible to a wheelchair. It is frequently used by all employees.
How would you go about assessing the workplace environment in this situation?
What key questions do you need answers to?
Who would you involve, and when, and how?
What would determine if this accommodation is for Deborah alone or one that would be for the entire unit?
For more information, see web sites for Assistive Devices Industry Office, Industry Canada www.at-links.gc.ca/as/ ;
The Canadian Council on Rehabilitation and Work www.workink.com ; and
Section 6. Resources And Support
In this section we will:
- present and share ideas on some of the resources that are available to assist in the accommodation process;
- identify the key people to go to in departments, agencies and units in order to begin the search for information, resources and support for accommodation.
I. Easy To Access Resources
There are numerous publications, audio-visual products, agencies, tools, and web sites available on disabilities and accommodation issues. We will focus on:
- readily accessible resources available through the internet (key web sites and downloadable publications);
- free of charge resources to Federal Public Servants (especially those resources that have been developed by the Canadian Federal Public Service);
- key contact people whom one can phone or e-mail to get started on the journey of accommodating persons with disabilities.
The format is intended to provide people with quick, easy access to the specific concern or question for which they are looking for answers and ideas. Many of these have already been provided throughout the manual. This section will summarize the previously recommended resources and add a few more.
Some Key Resources
A. Policy On The Duty To Accommodate Persons With Disabilities In The Federal Public Service
- The Policy can be read or downloaded from the Treasury Board Secretariat web site www.tbs-sct.gc.ca or publiservice.tbs-sct.gc.ca Click on "policies," then select "D" for "Duty…".
- Interpretations, frequently asked questions and answers can be found at this same web site. As well, Selection Process Q's and A's are available at the Public Service Commission web site at www.psc-cfp.gc.ca/accex/smrtshop/fall2002/nov26_qa_e.htm
- Support materials for this information session will be available on the Treasury Board Secretariat web site www.tbs-sct.gc.ca or publiservice.tbs-sct.gc.ca . At the time of this writing this includes Q's and A's, downloadable manuals, facilitator tips for those planning on delivering the session, key resources and links (similar to this section.)
- Public Service Alliance of Canada (PSAC): Duty To Accommodate www.psac.com/what/humanrights/Duty_to_accommodate-e.shtml
B. Inclusive Work Environments: Accommodation In The Workplace and In Selection Processes
- Public Service Commission's Personnel Psychology Centre has new Guidelines
for Assessing Persons with Disabilities that outline:
- the general principles - the nature of the disability, the qualifications being assessed and the type of assessment method being used (see Chapter II);
- the roles of various parties involved in determining accommodations (see Chapter III);
- the standards for documentation; and ð recommended procedures for
applying accommodations to ensure a fair assessment process (see Chapter IV). www.psc-cfp.gc.ca/ppc/disability/chap_1_e.htm
- The Employment Equity Division of the Treasury Board Secretariat (TBS)
strives to facilitate the implementation of Employment Equity in departments and
agencies for which Treasury Board is the employer by providing policy advice and
guidance, as well as monitoring and reporting on progress made. Included with
this site are Job Accommodation services. www.hrma-agrh.gc.ca/ee/index-eng.asp
- Also find at TBS numerous relevant policies and publications, such as
Creating a Welcoming Workplace for Employees with Disabilities - Part 1 of 2,
Employment Equity Policy - Part 1 of 2 and Guide to Planning Inclusive Meetings
and Conferences or
- Also find at TBS numerous relevant policies and publications, such as Creating a Welcoming Workplace for Employees with Disabilities - Part 1 of 2, Employment Equity Policy - Part 1 of 2 and Guide to Planning Inclusive Meetings and Conferences or www.tbs-sct.gc.ca/pubs_pol/hrpubs/TB_852/gpimc-gprci-eng.asp
- "Just Ask Me": Discussing Workplace Accommodation - Human
Resources Development Canada (HRDC) and the Canada Customs and Revenue Agency (CCRA)
have developed this interactive workshop and 15 minute video in order to build a
better understanding of accommodation issues in the workplace. Versions of the
workshop: one-day, half-day, and 1.5 hours. A CD of the half-day content is also
available. Contact the Office For Disability Issues (ODI) of HRDC www.hrdc-drhc.gc.ca/hrib/sdd-dds/odi
- Also find at the ODI, "A Way With Words and Images": - Learn
appropriate terminology for the portrayal of persons with disabilities.
- Also find at the ODI, "A Way With Words and Images": - Learn appropriate terminology for the portrayal of persons with disabilities.
- A Place For All: A Guide to Creating an Inclusive Workplace: Helps employers understand their legal obligations regarding the duty to accommodate, and create their own workplace accommodation policies and procedures. French version published separately.Downloadable .pdf document at the Canadian Human Rights Commission site (CHRC): "Publications" www.chrc-ccdp.ca/discrimination/place_for_all-en.asp
- Barrier-Free Employers: Practical guide for job accommodation for people with disabilities. Intended primarily for employers, company managers and human resources officers, its objective is to promote the integration of people with disabilities into the workplace, and to explain the steps that should be taken in order to facilitate the smooth integration of this productive sector into the labour force. Downloadable .pdf document at the Canadian Human Rights Commission site: "Publications" www.chrc-ccdp.ca/discrimination/barrier_free-en.asp
- A Guide to Screening and Selection in Employment, see CHRC "Publications" www.chrc-ccdp.ca
- The Job Accommodation Service (JAS) provides Canadians with information and support regarding job accommodations to advance the employment of people with disabilities. JAS provides a toll-free number: 1-800-664-0925. Email: firstname.lastname@example.org
- The Job Accommodation Network (JAN) is a free consulting service that provides information about job accommodations, the Americans with Disabilities Act (ADA), and the employability of people with disabilities. janweb.icdi.wvu.edu
C. Barrier-Free Facilities, Equipment and Technology
- Adaptive Computer Technology (ACT): Assistive devices and software tools that make the computer accessible and friendly to people with disabilities and injuries.
- Assistive Devices Industry Office, Industry Canada: Information and tools
for both businesses and consumers concerning the research, development,
production, and marketing of assistive devices and technology for people
with disabilities. Includes:
- Accessible News bulletins and a list of Canadian research and development groups and referral centres. strategis.ic.gc.ca/sc_mangb/asstdev/burst.html;
- The Assessment Procurement Toolkit: This site will generate a listing of requirements you can use to ensure that the technology or service being purchased is accessible. www.apt.gc.ca.
- Environment Canada Adaptive Computer Technology (ACT) Program's mandate is to assist in the integration into the workplace of EC employees with disabilities who require computer access. Gives ideas on modifications and available training. www.ec.gc.ca/act-tia/
- The Office for Disability Issues of HRDC has an adaptive computer technology
(ACT) Web site that is designed primarily to help federal government employees
with disabilities and injuries find the appropriate adaptive computer technology
solutions for a more productive workplace. www.hrdc-drhc.gc.ca/hrib/sdd-dds/odi
- Employment Equity Positive Measures Program (EEPMP) Workplace Adjustment for Persons With Disabilities: International Best Practice Study of Barrier-free Designs and Accessibility Policies - by Agriculture and Agri-Food Canada (AAFC) and the Canadian Food Inspection Agency (CFIA). www.psc-cfp.gc.ca
- Web Accessibility: The Treasury Board Secretariat has several sites of interest to those designing web pages:
- The Neil Squire Foundation: "Education, Technology and Career
Development for People with Physical Disabilities"
- Employment Access Skills Employment (E.A.S.E.) training program.
- Consultation and Assessment - recommends appropriate computer; and office assistive technology, and provides the training to use it;
- Research and Development develops and tests technology to benefit people with physical disabilities;
- Community Access Program Accessibility Workshop - Learn how to transform an inaccessible workstation into one suitable for access by people with a wide range of disabilities. www.neilsquire.ca/
- Adaptive Environments (USA) promotes inclusion, accessibility and universal design through education programs, technical assistance, training, consulting, publications and design advocacy. www.adaptenv.org/
D. Legal Developments
- The Charter Of Rights And Freedoms: See the web site for the Department of Justice Canada laws.justice.gc.ca/en/index.html
- The Canadian Human Rights Act, and The Employment Equity Act can be
located at the Canadian Human Rights Commission site, "Legislation
and Policies" www.chrc-ccdp.ca
- Also, in "Publications", see "Bona fide occupational
requirements and bona fide justifications under the Canadian Human Rights
Act": The Implications of Meiorin and Grismer. Downloadable .pdf www.chrc-ccdp.ca
- Also, in "Publications", see "Bona fide occupational requirements and bona fide justifications under the Canadian Human Rights Act": The Implications of Meiorin and Grismer. Downloadable .pdf www.chrc-ccdp.ca
- The Canadian Human Rights Tribunal gives its decisions on cases by
complainant and by year. For example, click on "Decisions", then
go to the bottom of the page and select "G" for Green to see the
case Green vs. PSC, TB, and HRDC www.chrt-tcdp.gc.ca
- The Canadian Council on Rehabilitation and Work: WORKink has a web site of
legal precedents regarding The Duty To Accommodate, compiled by Michael Lynk.
See relevant cases that illustrate "Boundaries", "Undue
Hardship", "Modified Duties" and "BFOR". www.workink.com
- B.C. Human Rights Commission: Human Rights Law in B.C. gives more information on Meiorin and Grismer cases and their implications. www.bchrt.bc.ca/popt/related_links.htm
E. Disabilities And Disability Issues
- This page lists all of the organizations who contribute to the People with Disabilities Section of the Canadian Health Network (CHN). All of these organizations are Canadian, non-profit, organizations specializing in the field for people with disabilities. www.nbeastersealmarchofdimes.ca/chn/Network_Contributors.htm
- The Canadian Council on Rehabilitation and Work is a Canada-wide network of organizations and individuals. Our mission is to promote and support meaningful and equitable employment of people with disabilities. WORKink promotes and supports the employment of persons with disabilities, providing labour market and career information, access to resources, and online experts' assistance. www.workink.com
- Persons with Disabilities Online, where you can access a broad range of disability related information. www.pwd-online.gc.ca/pwdh.4m.2@.jsp?lang=eng
- Disability WebLinks offers you a single-window access to federal, provincial and territorial government programs and related services for persons with disabilities. www.disabilityweblinks.ca/
- The Parliamentary Sub-Committee on the Status of Persons with Disabilities' mandate is: The proposing, promoting, monitoring and assessing of initiatives aimed at the integration and equality of disabled persons in all sectors of Canadian society. www.parl.gc.ca/disability/about/welcome-eng.asp
II. Who To Go To For Accommodation Help
Where do you start when you have an accommodation issue that you are not sure how to handle? Who do you first go to in your Department or Agency?
- As a person who needs accommodating
- As a person who has been asked for accommodation
- As the local person usually consulted on accommodation
- What if the first attempts are not successful?
Enquiries should be directed to human resource or employment equity personnel in your department or agency. They may review questions of policy interpretation or clarification with the Employment Equity Division of the Treasury Board of Canada Secretariat or with the Public Service Commission.
Accommodation is everyone 's business. It is the law, it makes good business sense, and it is the respectful thing to do. Accommodation balances the diverse needs of all individuals, groups, organizations and businesses in our society. It is a means by which we demonstrate our commitment to an inclusive, non-discriminatory organization and society through tangible actions.
In order for the accommodation process to work effectively, persons needing accommodation, employers, union officials, experts and co-workers must dialogue and work together. While the accommodation process may involve challenges and costs, it helps to create an inclusive work environment and society that respects people, diversity and human rights.
Monitors may look for the following evidence, and other indicators, to show that the policy on "the duty to accommodate" is having the desired effect:
- reductions in the number of formal Human Resources complaints and grievances;
- progress reports on Employment Equity;
- descriptions of measures taken to accommodate federal employees.
The Treasury Board Secretariat will assess and evaluate the effectiveness and implementation of this policy in accordance with the Policy on Active Monitoring.
The Public Service Commission will also monitor the application of this policy as part of its overall active monitoring of the federal Public Service staffing system.
Departments and agencies will provide early notice to the Treasury Board Secretariat and/or the Public Service Commission of significant issues arising from the implementation of this policy.
I. Closing Exercise
What is one thing you'll commit to doing, or not doing any more, to make your own workplace more accommodating?
Access to Information Act
Canada Labour Code, Part II
Canadian Charter of Rights and Freedoms
Canadian Human Rights Act
Employment Equity Act and Regulations
Financial Administration Act
Official Languages Act
Public Service Employment Act and Regulations
Public Service Staff Relations Act
Disability Insurance Plan for Public Service Employees
Personnel Psychology Centre Guidelines for Assessment of Persons with Disabilities
Policy on Alternate Formats
Policy on Language Training
Policy on the Disposal of Surplus Moveable Crown Assets
Policy on the Staffing of Bilingual Positions
Public Service Commission's Standards for Selection and Assessment
Public Service Management Insurance Plan (Long-Term Disability)
Real Property Accessibility Policy
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