Do you know your obligations when it comes to reasonable accommodation?

Has an employee requested a workplace accommodation because of a disability or his/her religious beliefs? Make sure that you do not take such a request lightly because you could end up paying thousands of dollars in damages.

Some grounds of discrimination, such as age, pregnancy, disability, sex or religion, are protected under the Charter of Human Rights and Freedoms (the Charter) and require consideration of reasonable accommodation when requested.

Please note: The concept of disability must be interpreted within the meaning of the Charter to include any permanent or temporary physical or mental condition likely to result in discrimination. This includes but is not limited to: paraplegia; mental disorders; visual or hearing impairments; epilepsy; drug/alcohol addiction; acne; obesity; HIV seropositivity. 

What is reasonable accommodation?

Reasonable accommodation is a way of dealing with a discriminatory situation; it is based on one of the grounds provided for in the Charter (see list below). Accommodation is not preferential treatment, but an exemption or measure for equality that allows each person to exercise his or her rights. Keep in mind that, in this context, equality can be achieved by a variety of means.   

What are my obligations as an employer with respect to reasonable accommodation?
You are required to take individuals and their differences into account and must adapt or relax your practices in order to accommodate each person in his/her work environment when these differences run the risk of leading to discrimination.

You are required to provide accommodation only if the request is based on one of the grounds provided for in the Charter.

What are the grounds of discrimination?

• age 
• social condition
• political convictions
• civil status
• pregnancy
• disability
• ways of accommodating a disability (e.g., wheelchair, guide dog, etc.)
• gender identity or expression
• language
• sexual orientation
• race, colour or ethnic origin
• religion
• sex

When one of your employees cites any of these grounds of discrimination to request an accommodation in the workplace, you must examine this accommodation in an objective manner to determine whether it is reasonable or whether there is an alternative that could be considered.

You must be proactive when looking for a solution and flexible when examining such organizational practices as work schedules or employee tasks. In other words, you cannot categorically deny a request and simply stop trying to find accommodation at the first apparent hardship that you may run into. Every situation is handled individually and resolved on a case-by-case basis.

Moreover, you are still obligated to provide reasonable accommodation with respect to the work conditions that were originally accepted by your employees when they were hired. Consequently, you cannot cite the employment contract provisions as grounds for refusing to consider the request.

Am I allowed to deny an accommodation request? 
You can deny an accommodation request only if it represents an undue hardship for your company. 

What criteria can be used to determine undue hardship?

• excessively high costs
• a serious obstacle to work organization
• an accommodation that conflicts with the safety and/or rights of others

If one or more of these criteria come into play, you may deem that the request for accommodation is not reasonable.

That said, you must still continue to seek a solution and examine whether there are other alternatives that could be considered. In other words, although you are not required to provide accommodation at all costs, you do need to do whatever is possible to find a mutually satisfactory solution to the accommodation request.

Important: Keep in mind that you must be able to prove that the situation has been objectively analyzed and that the efforts made were genuine and sincere.

What should you do if you receive an accommodation request? 

1. Check to see whether the request is based on one of the grounds of discrimination provided for in the Charter.
2. If so, inform the employee that you have taken due note of his/her request, that you are committed to finding a solution and that you will get back to him/her.
3. Contact your CFIB Counsellor to discuss the matter!