The duty to accommodate arises from human rights legislation, which prohibits various forms of discrimination on the basis of prescribed prohibited grounds. Although prohibited grounds vary slightly between jurisdictions, there is significant overlap and will generally include protected characteristics such as race, religion, sex and disability, among others.
Requests for accommodation from employees are often some of the most sensitive and complex challenges for employers managing their employees. There are many questions an employer must assess, including:
- Is the employee experiencing discrimination (i.e. has the duty to accommodate been triggered)?
- What limitations or restrictions does the employee have? How can those limitations or restrictions be established or documented?
- In the case of disability, what medical information can and should be requested?
- Is there a reasonable accommodation that can be offered to the employee that does not cause undue hardship to the employer?
Long-term or permanent accommodation requests can be particularly challenging to manage. A long-term accommodation may evolve over time depending on the changing needs of the employee and the operations of the employer. Additionally, long-term accommodations can have a larger impact on the operation of the business and the financial cost of those accommodations.
Best practices
Although a long-term accommodation can be more complex, it is important to stick to the same best practices and general principles as a temporary accommodation request. Some best practices to follow in the case of a long-term accommodation include:
- Documenting and maintaining a record of all information requested and received from the employee, in a confidential manner;
- Requesting updated medical information from the employee on a regular basis;
- Reviewing updated medical information received against the accommodations being provided to the employee, and assessing whether:
- The accommodations being provided remain appropriate;
- Any new restrictions or limitations require accommodation; and
- The employer can continue to accommodate the employee, or whether it will experience undue hardship.
In limited cases, an employer may terminate the employment relationship where accommodation would constitute an undue hardship for the employer. In the case of disability, whether an employee will be able fulfill the basic obligations associated with the employment relationship for the foreseeable future, and whether the employee has participated in the accommodation process and provided requested medical information are factors in this analysis.
Unfortunately, there is no bright-line test on what is considered undue hardship. The duty to accommodate to the point of undue hardship is more than a de minimis standard; employers are expected to accept some hardship in accommodating employees to promote equal access to the workforce to those who would otherwise experience significant barriers. It is only when accommodation would cause significant issues that it would be considered an undue hardship.
What constitutes reasonable accommodation or undue hardship is highly contextual, and is affected by factors such as the costs of accommodation, the resources available to the employer, and any safety concerns or workplace disruptions arising with respect to the particular employer in the circumstances. A long-term or permanent accommodation may increase the hardship of implementing an accommodation by increasing the costs or causing a greater disruption to the employer’s operations but do not automatically meet the definition of undue hardship.
The remedies and damages under human rights legislation can be significant. Employers should be well advised of the risks in the circumstances before proceeding with termination.
To find out more, employers and HR professionals can attend the 2024 MLT Aikins/CPHR Saskatchewan HR Professionals Seminar in Regina on September 17, 2024 or in Saskatoon (in-person or virtual options) on September 24, 2024.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.