Duty to Accomodate
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1 - What is discrimination?
The Canadian Human Rights Commission defines discrimination as an action or a decision that treats a person or a group differently, whether it is intentional or not, based on one of the prohibited grounds found in section 3 of the Canadian Human Rights Act (“CHRC”):

“For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”

Discrimination in the workplace will usually take one of the following forms:
* harassment based on a prohibited ground;
* policies or practices that deprive or tend to deprive an individual or class of individuals of any employment opportunities based on a prohibited ground;
* failure to take into account a person´s disability; or  
* failure to treat two groups of employees differently (e.g. pay equity).  

2 - What is the duty to accommodate?
The duty to accommodate is a statutory obligation imposed on the employer to adjust working conditions so that employees identified in one or more of the prohibited grounds under the CHRA can continue working.  The statutory duty to accommodate is required to the point of undue hardship.  This means that the most appropriate, i.e. reasonable, accommodation must be determined and implemented to the point of undue hardship.

Undue hardship is a high standard that can take into account financial costs, sources of funding and health or safety risks.  Each case is to be assessed on its own merits.

The duty to accommodate generally follows an accommodation request from an employee.  Although in the employment context the duty to accommodate often involves a disability component, it is important to remember that this duty applies to all protected grounds found in section 3 of the CHRA such as creed, religion, sex or family status, for example.

The duty to accommodate may very well result in different treatment of some employees in order to attain equality and eliminate a negative treatment stemming from an employment policy or practice (“workplace barrier”) that is not intended to be discriminatory in nature in its application.  

For instance, even though no employees in a given office may be permitted to telework, an employee with a specific disability could be granted teleworking rights in order to comply with his/her functional limitations.  This accommodation is intended to allow the employee to complete assigned duties they might not otherwise be able to do without accommodation.

AJC members are also invited to watch videos of the presentation on mental health and the duty to accommodate in the public service. This presentation was made at the 2013 AJC annual governing council, in october 2013. Click here to watch the videos.

3 - What is an accommodation?
An accommodation is an exemption or a modification to an employment practice or policy that allows the employee to fulfill the essential duties of his or her position and retain his employment.  

The types of accommodation one might be entitled to are not prescribed within the CHRA.  Every case must be looked at on an individual basis in order to assess which remedy would help rectify the negative impact brought on by the applicable employment practice or policy.  

Accommodation can take on a variety of forms.   Examples could include redistributing non-essential duties to another worker for a temporary period, reducing an employee´s work schedule, allowing the employee to telework, implementing a gradual return-to-work plan, providing a more quiet workspace or ergonomic equipment.  

4 - What are the essential duties of my position?
The essential duties of your position, also known as Bona Fide Occupational Requirements (BFOR), are the main tasks that are required of you in your job.  They are crucial and central to your job.   They are not mere preferences, but rather indispensable requirements that must be performed.  

The Meiorin* decision sets out the steps to establish what tasks should be considered BFORs:

(1)   [has] the employer adopted the standard for a purpose rationally connected to the performance of the job?
(2)   [has] the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose? and
(3)   [Is] the standard reasonably necessary to the accomplishment of that legitimate work-related purpose?  To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

* British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3

5 - What if I refuse an offer of accommodation from the employer?
Along with the employer's duty to accommodate comes the employee's corresponding duty to participate in his or her own accommodation.  It is important to note that an employee is not entitled to insist on his or her ideal or preferred accommodation.

If the employer's proposal amounts to reasonable accommodation, then the employer will have discharged its obligation.  Therefore, the refusal of a reasonable accommodation that appropriately addresses an employee's limitations could result in a complete discharge of the employer´s duty to accommodate.  This therefore means that the employer will not be obligated to explore other options.  

The end result is that the employee who refuses reasonable accommodation in the case of an employee who is currently on leave with or without pay, may end up on an unapproved leave of absence without pay and at risk of losing his or her employment.

6 - What are the employer´s obligations to ensure a discrimination-free workplace?
In 1999, the Supreme Court of Canada case Meiorin adopted a new standard unified approach to ensure a discrimination-free workplace.  

The court clearly imposes a duty on the employer to make every reasonable effort, short of undue hardship, to accommodate workers and to proactively eliminate any employment policy or practices that may discriminate against individuals or groups of individuals based on the grounds enumerated in the CHRA.

Since Meiorin, there is now a positive obligation on employers to design workplace standards that will enshrine the spirit of equality and a discrimination-free workplace through its practices and policies.

7 - Do I need to provide full disclosure of my medical information to the employer when asking for accommodation?
No, the employer is not entitled to know your diagnosis but it is entitled to receive sufficient information to address the situation properly. Only the information necessary for determining the appropriate form of accommodation has to be shared.  

As an employee, you are responsible for ensuring that your employer gets the list of functional limitations your treating physician has set out, having regard to your existing job requirements.

It is therefore a good idea to share your existing job description with your doctor so that he or she can appreciate the scope and nature of the work that you do and properly advise the employer of your functional limitations. Your doctor should also indicate how long such functional limitations are expected to exist. This will provide an estimate of how long the accommodation may be required by the employer.

This kind of information is not usually required for employees who have readily evident disabilities such as permanent physical disabilities for instance.

8 - I have special needs based on a prohibited ground other than disability. Can I still make a request for accommodation?
Yes.  Although most of the accommodation requests in the employment context are disability-related, the duty to accommodate extends to all grounds enumerated by section 3 of the CHRA.

9 - What are the employee's obligations?
Although the employer has a positive obligation stemming from the current human rights legislative scheme in Canada, the employee also has obligations that must be met in order to benefit from an accommodation request.

As an employee requesting accommodation, you must:
* Identify and communicate, in writing, the need for accommodation to your supervisor;
* Provide the necessary information and documentation to support the accommodation request;
* Maintain open lines of communication with the employer and the union and inform all parties involved if there are any changes to your situation; and,
* Cooperate with the employer and the union to find the appropriate accommodation solutions.

10 - Does the union have obligations as well in the context of my accommodation request?
In the context of the duty to accommodate, a union cannot cause or contribute to a discriminatory practice or impede the employer's accommodation attempts. Although the employer remains primarily responsible for ensuring the accommodation needs of the employee, the union must work with the employer to help find a proper and agreeable accommodation solution.

The union, like the employer, cannot contract out of human rights legislation and will need to work with the employer to help accommodate the member in need of accommodation.  Of course, employees can make their accommodation requests without union assistance or involvement if they prefer. However, some more complicated cases could benefit from our intervention to ensure that your needs are being met in a timely manner.  

11 - My employer refuses to accommodate me. What's next?
Accommodation cases must be analyzed on an individual basis.

After an initial written request to your immediate supervisor (preferably with a medical report spelling out functional limitations), should the employer refuse to accommodate you, we ask that you contact the AJC by filling out an incident report and forwarding it to admin@ajc-ajj.ca .

A labour relations agent will review and contact you as soon as possible in order to help you identify possible solutions.  

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