Existing legislation, organizational policies, and procedures should be reviewed prior to beginning the accommodation process. Always seek clarification about regulation in your jurisdiction before making assumptions about the intent of any policies.
What is accommodation?
Currently the definition of accommodation can vary across Canada, but the Policy Statement on the duty to accommodate under the Ontario Human Rights Code provides some helpful guidance for employers. Where Code is used in the paragraphs below, they are referring to the specific legislation in Ontario, but most human rights agencies in Canada have similar approaches to the duty to accommodate. Links to provincial and territorial human rights agencies are provided below.
Accommodation means making adjustments to policies, rules, requirements and/or the built environment to ensure that people with Code-related needs have equal opportunities, access and benefits. Accommodation is necessary to address barriers in society that would otherwise prevent people from fully taking part in, and contributing to, the community.
Accommodation does not mean lowering essential qualification standards, which are the skills or attributes that one has to meet for a particular job, to graduate from a class or program, etc. Accommodation is a shared responsibility. Everyone involved, including the person asking for accommodation, should cooperate in the process, share relevant information, and jointly explore accommodation solutions.
The Code prohibits discrimination that results from requirements, qualifications or factors that may appear neutral but that have an adverse effect on people identified by Code grounds. The Code provides for an organization to show that a requirement, qualification or factor that results in discrimination is nevertheless reasonable and bona fide (legitimate). However, to do this, the organization must show that the needs of the person cannot be accommodated without undue hardship. From http://www.ohrc.on.ca/en/policy-statement-duty-accommodate-under-ontario-human-rights-code
The Policy statement on the duty to accommodate under the Ontario Human Rights Code also states:
Human rights would be functionally meaningless if the needs of Code-protected groups were not taken into account through the process of accommodation. By making adjustments to the standard way of doing things, organizations are fulfilling their legal responsibility to remove the barriers that prevent people covered by the Code from fully taking part in, and contributing to the community. From http://www.ohrc.on.ca/en/policy-statement-duty-accommodate-under-ontario-human-rights-code
Legal framework related to the duty to accommodate
What follows are some of the requirements described by Human Rights Codes. Although there are different provincial, territorial, and federal Human Rights Codes, as well as the Charter of Rights and Freedoms, the obligations are generally similar. In addition, certain provinces have accessibility legislation (e.g., Ontario and Manitoba), which may have additional workplace accommodation requirements. You should obtain professional legal advice on specific obligations that may apply in your province or territory or to your industry and your duty to accommodate.
- Everyone has the right to equal treatment in employment and cannot be discriminated against on the basis of actual or perceived disability. Equal treatment does not mean the same treatment. The duty to accommodate is explained by the Canadian Human Rights Commission.
- Terms used in discussing the duty to accommodate can be quite broad. Following are some of the terms and language you may hear or see in discussions related to the duty to accommodate:
- Employer – Can include unions, volunteer boards and contractors.
- Employment – Can include activities such as hiring, recruiting, training, transfers, promotions, employee benefits, pay, discipline and performance evaluation.
- Disability – Generally includes mental illness, mental disorder, and substance abuse, including drug and alcohol dependency.
- Discriminatory treatment – May include refusing to hire someone because it is assumed, based on stereotypes rather than ability, that they cannot do the job. It can also include prohibiting someone from taking part in projects, promotions, or training opportunities due to an unsubstantiated perception that the disability would not allow them to be successful. See What is discrimination? on the Canadian Human Rights Commission's website.
- Reasonable accommodation – Allows employees to perform the essential duties of the job. The types of accommodation that may be requested may be varied and if two solutions will work, but one is more reasonable in terms of practicality, it should be considered.
- Undue hardship – Some Human Rights Codes set out that the extent to which an employer must go in considering accommodations is to the point of undue hardship, which means that some hardship on the part of the employer is considered acceptable. Under the Canadian Human Rights Act, an employer can claim undue hardship when adjustments to a policy, practice, by-law or building would cost too much, or create risks to health or safety. There must be evidence to support undue hardship. See What is Undue Hardship? on the Canadian Human Rights Commission’s website.
See also Examples of Potential Discrimination for types of situations in which there was no known intention to harm, but the actions of an employer were perceived by the employees as discriminatory. Alternative strategies are also offered.
What are some of the relevant laws in Canada?
There are various statutes prohibiting discrimination against persons based on certain characteristics such as gender expression, family status or disabilities (including mental disabilities) that may apply to employers in Canada.
These include the following:
- Canadian Charter of Rights and Freedoms applies to government action and legislation.
- Canadian Human Rights Act applies to federally regulated employers, including the federal government, Crown corporations, Canada Post, chartered banks, national airlines, inter-provincial communications and telephone companies, inter-provincial transportation companies and other federally regulated industries.
- Provincial and Territorial Human Rights Agencies apply to provincially regulated employers.
- Employment Equity Act applies to federally regulated employers. https://laws-lois.justice.gc.ca/eng/acts/E-5.401/
- Occupational Health and Safety – Every province has its own legislation governing occupational health and safety. It focuses on identifying hazards, mitigating risks and protecting workers from harm. Canadian Centre for Occupational Health and Safety provides more information.
- Employment Standards – This type of legislation may include references to hours of work, discipline for absenteeism, employee benefits and, in some cases, entitlements to leave for pregnancy, childbirth, or family emergency. Search for the applicable employment standards for your jurisdiction. (Note that the National Standard of Canada for Psychological Health and Safety in the Workplace is voluntary, rather than legislated.)
- Worker's Compensation – This legislation includes public insurance plans that cover most workplace injuries and illnesses. Refer to the Association of Worker's Compensation Boards of Canada (AWCBC) for more information about what is covered in each province or territory. AWCBC also offers specific information about when compensation may be awarded for workplace/occupational stress.
- Accessibility and mental illness – Accessibility is related to the removal of barriers that prevent persons with disabilities to fully participate in the workforce. A barrier is generally defined in the legislation as anything that prevents a person with a disability from fully participating in all aspects of society because of their disability, including a physical barrier, an architectural barrier, any information or communications barrier, an attitudinal barrier, a technological barrier, or a policy or practice.
One legislative approach is the Accessibility for Ontarians with Disability Act, 2005, which requires, among other things, a systemic strategy to create and sustain barrier-free workplaces. Legislation requiring barrier identification, removal, and prevention exists only in some provinces.
Legalistic accommodation versus organic accommodation
- While the law has much to say about accommodation, it is always better to avoid getting embroiled in legal battles about whether, when or to what extent a person’s needs, interests or rights should be the basis for modification of working conditions or environments.
- Although it is sometimes unavoidable, it may be possible to avoid some legal complaints by having policies and practices that foster a culture of fairness in which accommodation is seen as a responsibility borne by all workplace actors. This type of culturally embedded accommodation can be called “organic”, as opposed to “legalistic”.
- Organic accommodation is a characteristic of a culture in which it is a norm for workers to be aware of how they affect one another and to have basic understandings of one another’s interests, needs and rights. This awareness and understanding contributes to forms of problem solving in accommodation situations that may be more likely to lead to fair outcomes for everyone involved. This approach is based on the observation that accommodation is a shared responsibility that affects not only the people to be accommodated but also those in their spheres of influence.
- For example, accommodations often result in the redistribution of work. In organic accommodation this redistribution is more likely to be seen as equitable by all parties than in situations where the law has been the primary instrument for addressing the needs, interests or rights of a particular individual.
Provincial and Territorial Human Rights Agencies
- Alberta Human Rights and Citizenship Commission
- British Columbia Human Rights Tribunal
- Manitoba Human Rights Commission
- New Brunswick Human Rights Commission
- Newfoundland and Labrador Human Rights Commission
- Northwest Territories Human Rights Commission
- Nova Scotia Human Rights Commission
- Ontario Human Rights Commission
- Prince Edward Island Human Rights Commission
- Québec Human Rights Commission
- Saskatchewan Human Rights Commission
- Yukon Human Rights Commission
- Other references to disability policy in Canada
Please note that the information provided in this section is for the purposes of general information and is not a substitute for obtaining legal advice.