Workplace accommodation is an area we’ve been getting a lot of questions about lately. Many of our clients have been receiving accommodation requests from their employees, and it’s left them wondering what they need to do next.
There are a lot of misconceptions around workplace accommodations, but the overall goal is to ensure that employees are not unfairly excluded. This may mean that working conditions need to be adjusted to provide equal opportunities, access, and benefits. Disability is one of the most common characteristics that employers must accommodate, so we’ll focus on disability-related accommodations throughout this post.
We know workplace accommodations can be a challenging area to understand, so we asked our HR experts to break down everything you need to know about accommodation requests.
Q: What is the duty to accommodate?
A: Employers are legally obligated to reduce or eliminate discriminatory barriers that prevent employees with a protected characteristic from fully participating in the workplace. Check the human rights legislation for your jurisdiction for a list of the protected characteristics that apply to your workplace.
The duty to accommodate has two components: procedural and substantive. Failing to fulfill either can lead to liability.
- The procedural duty to accommodate includes the accommodation process itself, from collecting all relevant documentation to assessing what types of accommodation could be provided.
- The substantive duty to accommodate involves using the information gathered and then implementing reasonable accommodations to meet the employee’s needs.
Q: What is undue hardship?
A: Under human rights legislation, organizations have a duty to accommodate to the point of undue hardship. There is no set standard for what is considered “undue” because every organization will have unique circumstances. Generally, human rights legislation and government bodies recognize only three considerations when assessing undue hardship.
- Cost: The financial impact of providing the accommodation would be so severe that it would impact the survival of the business.
- Outside sources of funding, if any: Accommodation funds, government grants, or loans should be considered to offset costs of the accommodation.
- Health and safety requirements, if any: The accommodation would pose a significant risk to the person requesting the accommodation or to other employees or customers.
Some degree of hardship is expected when it comes to accommodations. If it crosses the threshold, you can claim undue hardship; however, the burden of proof will be on you as the employer. You would need to provide facts, figures, and scientific data or expert opinion to support a claim that the proposed accommodation would cause undue hardship.
Q: Can I ask for additional information about an employee’s medical condition?
A: Yes, but you will need to tread carefully. Let’s say you receive a medical note that indicates a leave, restrictions, or accommodation is required for medical reasons. In fact, we often hear from clients that they receive notes reflecting “the patient indicates” or “I suggest or recommend.”
In this case, you can certainly require additional information from the medical provider. However, you should avoid asking for specific details about the employee’s disability. Employees are not obligated to disclose that information. Instead, find out more about the requested accommodation and what the employee’s abilities and limitations are in the context of their job duties.
Q: Who should be involved in the accommodation process?
A: Meeting the duty of procedural accommodation is a collaborative process between the employee, employer, and healthcare provider.
Unions and professional associations should also take an active role as partners in the accommodation process. They should share joint responsibility with the employer to facilitate and support accommodation measures regardless of collective agreements, unless doing so would create undue hardship.
Q: What responsibilities do employees have in the accommodation process?
A: Employees should participate in discussions about potential accommodations, collaborate with employers to find adequate solutions, and follow accommodation plans.
- Make their accommodation needs known: The employee should take part in discussions about accommodation solutions. It’s important that employees understand they are not entitled to their preferred accommodation. However, the accommodation does need to meet their disability-related needs and should be deemed reasonable under human rights legislation.
- Cooperate with their employer: The employee should answer questions and provide information about restrictions or limitations related to their medical condition. They should also provide employers with requested information and relevant updates from their healthcare provider.
- Follow their accommodation plan: After an accommodation plan is set, employees should not perform any tasks that are restricted under this plan. Conversely, if the employee is refusing to do tasks that are not restricted, they will need to provide updated medical documentation.
Q: What responsibilities do healthcare providers have in the accommodation process?
A: Healthcare providers should clearly identify the employee’s limitations and be explicit about the needs associated with the employee’s disability.
When corresponding with healthcare providers, employers should keep the following in mind:
- Provide context: The healthcare provider should be explicit about any limitations or needs associated with the employee’s disability; however, they can only assess the employee’s abilities to complete their job if they know what the job entails. It’s important that healthcare providers are given complete and updated information about the employee’s role.
- Document all communications: Any communication with the healthcare provider should be written to provide a record of discussions about whether the employee can perform the job with or without an accommodation, as well as the type of accommodation that may be needed.
- Provide regular updates: Accommodation is an ongoing process. Employers should keep the healthcare provider informed of changes, progress, and other important information.
Step-by-step guide to accommodating employees
Now that we’ve covered some background on the duty to accommodate, here are six steps to follow to accommodate your employees.
Step 1: Inquire
You don’t need to wait for an employee to make an accommodation request if you notice they are behaving uncharacteristically. In fact, if you have a reasonable suspicion that an accommodation may be required, you as an employer have an obligation to ask whether an accommodation may be necessary. This is called the duty to inquire.
For example, if you see changes in an employee’s behaviour and suspect they may be dealing with substance abuse, it is your responsibility to initiate a discussion with the employee about a need for accommodation.
Step 2: Have an interactive dialogue with the employee
While employees do not have to disclose their diagnosis, you can ask about the prognosis. Find out what the employee can and cannot do and for how long. During your conversation, discuss accommodation solutions that would enable the employee to perform their role.
Step 3: Obtain relevant information
Collect information about an employee’s disability through an individualized and respectful investigation of accommodation measures and assessment of the employee’s job-related needs. This is fulfilling your procedural duty to accommodate.
Step 4: Provide a reasonable accommodation plan
This forms the substantive component of your duty to accommodate. Remember that the purpose of an accommodation is to meet a person’s needs, not necessarily their preferences. While you may not be able to provide their accommodation of choice, the accommodation should still enable the employee to do their job without barriers. Put an accommodation plan in place and re-evaluate or modify as needed.
Step 5: Cover the costs
As the employer, you should pay for any required medical documentation and accommodation equipment or modifications. Many accommodations are quite affordable, but if expensive accommodations are required, you can look into federal, provincial, or local funding to help offset the costs.
Step 6: Maintain privacy and confidentiality
Privacy is critical when it comes to accommodation requests. Do not disclose any information to other employees. Step in if you notice employees discussing or speculating about the health of a team member.
As an employer, you are legally entitled to receive medical documentation to support a requested accommodation. While you cannot ask for an employee’s medical diagnosis, you should have an open dialogue with them to learn how their medical condition may prevent or restrict them from performing their job.
It is an employer’s responsibility to provide reasonable accommodation up to the point of undue hardship. An accommodation is only required to meet the needs, not the preferences, of the employee. Review all accommodation requests and work with your employees to find the best solution so that everyone can work safely in an inclusive and respectful environment.
Trending challenges for employers across Canada
Our team of HR advisors answers over 15,000 calls a year from clients coast to coast on all things HR. We speak with clients daily about the situations they face. Here are a few examples of some of the questions we advise on and assist with.
- Most of my employees have been working from home due to the pandemic for quite some time. Recently, I have notified my employees of a date when they will transition back to the office. Following that notification, one of my employees submitted a doctor’s note to me that indicated, “Patient was seen today; due to medical reasons, must work from home.” What do I do?
- Yesterday, one of my employees provided a doctor’s note that read, “Patient requires a medical leave of absence.” Am I obligated to provide a leave of absence based on this note? Am I allowed to request more information?
- One of my employees seems to call in sick quite often. In addition, when this employee is at work, I have additional concerns regarding work performance. I recently had a meeting with this employee to address my concerns and the employee advised that she has medical issues that prevent her from coming to work as scheduled and that prevent her from completing her job duties properly. What do I do?
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