Existing organizational policies and procedures should be reviewed prior to beginning the accommodation process. Always seek clarification before making assumptions about the intent of any of these policies.
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 he or she 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 him or her 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 also Examples of potential discrimination for types of situations in which there was no known intention to harm, but the actions 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 with disabilities (including mental disabilities) that may apply to employers in Canada:
- 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.
- 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 his or her 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.
Managing Accommodation is a free video-based learning module that can also help explain what you should or should not say related to the duty to accommodate.
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.
The following are links to resources that may be of interest to you. If you click on a link you may be entering a third party website not maintained or controlled in any way by us or our affiliated companies. For more information, see Legal and Copyright.
Human Rights at Work
The third edition of Human Rights at Work is available to view online or for download at no cost. To order a print copy visit www.carswell.com. Included with permission of the Ontario Human Rights Commission.
20 Questions for Leaders about Workplace Psychological Health and Safety helps leaders review possible exposures to risk or potential for improvement.
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