Employers have an obligation to accommodate employees who are unable to perform their work duties for legitimate reasons, such as disability. Employers who do not make reasonable accommodations may be in violation of Ontario’s Human Rights Code.

The employer’s duty of accommodation is not absolute. They are only required to accommodate an employee’s needs to the point of undue hardship. Employers must accommodate by using a certain set of policies, administrative rules, and requirements to be more flexible for the disabled employee.

What is “Undue Hardship”?

According to the Ontario Human Rights Commission and the Supreme Court of Canada, the cost spent by an employer to accommodate an employee’s needs will amount to “undue hardship” if they are:

• Quantifiable
• Shown to be related to the accommodation, and
• So substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability.

If an employer claims that their accommodations have hit the point of undue hardship, they must prove the undue hardship using objective evidence. It is important to demonstrate that the hardship is real and quantifiable.

Assessing the Burden of Accommodation

The Human Rights Commission has set out certain factors that are considered when assessing an employer’s level of accommodation, including:

• Financial proof
• Data and information resulting from empirical studies
• Expert opinion
• Detailed information about the activity and the requested accommodation
• Information surrounding the activity and their effects on the person or group with a disability

In Giang v. DBG Canada Limited, an employee believed that certain equipment in his workplace posed a risk of electric shock to a defibrillator implanted in his chest. His employer initially accommodated his concerns by allowing him to work in a separate part of the worksite but discontinued the accommodation after some time.

The employee was ultimately terminated, and a worksite assessment was only conducted by the employer after the termination. As the assessment determined there was no substantial risk to the employee, the employer argued that it had no duty to accommodate as there had been no real safety risk present.

The Ontario Human Rights Tribunal held that the employer should have investigated the risk and was required to meet its duty of accommodation before the termination occurred and could not rely on the workplace assessment after the fact.

This procedural duty is important for employers to accommodate employees’ protected rights under the Human Rights Code. An employer can be found to have discriminated against an employee on the grounds of disability if they fail to assess and accommodate the employee’s needs.

Determining Reasonable Accommodation

In determining how to accommodate an employee’s disability in the workplace, employers should consider the following questions:

1. What is the employee’s limitation?
2. How does this affect their job performance?
3. What can help accommodate their limitations and assist with getting the job task completed?
4. Are these accommodations causing undue hardship and significant substantial limitations for our workplace?

Some examples of reasonable accommodations may include:

• Flexibility in work schedule and breaks
• Providing job restructuring or assignment distribution among other employees
• Modified working conditions for physical limitations, and assistance with parking
• Ensuring safety standards are reasonable to suit the individual
• Adequate access to the worksite
• Work-from-home or hybrid work options

Employee and Employer Obligations for Accommodation

Employees should know their rights and entitlement to reasonable accommodation in the workplace as protected by the Human Rights Code. It is also important for employees to proactively disclose any limitations they have so they can engage in an accommodation plan with their employer.

Employers should be open to exploring various options for accommodation. An employer cannot simply declare that it is not cost-effective to accommodate the employee’s needs. They must demonstrate that the accommodation required would pose an undue hardship that is objectively real and quantifiable in terms of cost.

Contact Grosman Gale Fletcher Hopkins LLP for Advice on Employee Accommodation

The employment lawyers at Grosman Gale Fletcher Hopkins LLP advise both sides of an employment relationship on issues of accommodation and undue hardship. We also assist with a wide range of other employment issues, including discrimination and wrongful dismissal. Contact us online or by phone at 416-364-9599 to schedule a consultation on your employment or labour matter.