HRPA York Region Chapter January 16, 2020

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HRPA York Region Chapter
January 16, 2020
The Duty to
Accommodate
Stuart Rudner
stuart@rudnerlaw.ca
416.864.8501
Presented by:

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Disclaimer
The user is authorized to use this presentation for the user’s own needs only, and is not
authorized to make copies thereof for sale or for use by others.
This presentation is not provided for the purpose of providing legal advice.
Every situation is unique and involves specific legal issues. If you would like legal
advice with respect to the topics discussed in this presentation, or any Employment
Law matter, we would be pleased to assist you.
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● What is Accommodation?
● What types of things do you have to accommodate?
● What triggers the duty to accommodate?
● How far do you have to go?
● What if you get it wrong?
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Overview
1.The Duty to Accommodate Explained
2.Limits: Bona Fide Occupational Requirements
and Undue Hardship
3.Responding to Requests for Accommodation
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Human Rights Laws
● To allow those that can work to do so
● Not pay people not to work, or create jobs that
don’t exist
● Eliminate barriers
a. physical
b. psychological
c. attitudinal
● Protect traditionally disadvantaged groups
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Protected Grounds in Employment (Ontario)
● Race
● Ancestry
● Colour
● Place of origin
● Ethnic origin
● Citizenship
● Creed
● Sex
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● Sexual orientation
● Gender identity
● Gender expression
● Age
● Record of offences
● Marital status
● Family status
● Disability

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What is Unlawful Discrimination?
“Adverse treatment of a person on the basis of a prohibited ground”
Direct and Indirect discrimination
“No disabled applicants”
vs
All offices on second floor, no elevator
*not all “discrimination” is unlawful
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The Duty to Accommodate

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Accommodation
Sometimes people need individual arrangements so they
can do their jobs, access services and buildings, and enjoy
housing equally – this is called accommodation
Failure to accommodate = barrier to employment =
Discrimination unless exception applies
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The Duty to Accommodate
The law expects:
● real effort to accommodate the need/request;
and
● some hardship
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What can accommodation look like?
*no requirement to create job or to maintain compensation level
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Tolerating Absences Modified or shuffled duties
Modified Working Conditions Modified Hours
Telecommuting/changing location provision of assistive equipment
Reassignment to new role Leave of absence

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Bona Fide Occupational
Requirements and Undue Hardship
Limits on the Duty to Accommodate

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Bona Fide Occupational Requirement
(BFOR)
● A skill, requirement or rule essential to the performance of the job
● If a barrier = a BFOR, the employer may not be required to
accommodate
○High standard
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Plaintiff must establish prima facie discriminatory conduct
Onus then shifts to employer to show:
●Standard was rationally connected to job performance
●Honest and good faith belief of its necessity
●Reasonable and necessary for legitimate purpose
● was there way to achieve purpose with less
impact on human rights?
● often overlaps with undue hardship analysis
If employer fails to establish these three
criteria, conduct is discriminatory
The Meiorin Test
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BFOR?
● Staff in a men’s locker room at the gym must be men?
● Interpreter for hearing impaired must have good
hearing?
Others?
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Limit: Undue Hardship
● Duty to accommodate is not unlimited
● Not to point of impossibility
● Limit: undue hardship*
● High standard to meet
*check your policy wording
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Discuss
You have an employee that had a stroke
and now requires a wheelchair. He works
on the second floor. Would having to install
an elevator or ramp constitute undue
hardship?
➢IT DEPENDS

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What is Undue Hardship?
● Severe negative effects must outweigh benefit of accommodation
● Consider:
○Financial Costs
○Health and safety risks
○Impact on operation of workplace
○Anything else that is relevant
● Breach of collective agreement is not undue hardship
● Neither is customer preference
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Assessing Cost as Undue Hardship
Undue hardship cannot be established by relying on impressionistic or
anecdotal evidence, or after-the-fact justifications. Anticipated hardships
caused by proposed accommodations should not be sustained if based only on
speculative or unsubstantiated concerns that certain adverse consequences
"might" or "could" result if the claimant is accommodated.
Must be:
❏Quantifiable
❏Directly related to accommodation
❏So substantial it would alter essential nature/viability of enterprise

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Responding to
Accommodation Requests
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Process of Accommodation
Procedural Duty: Take all reasonable steps to obtain required info
to assess disability & availability of accommodations
Trigger: Request or obvious indicators of need (duty to inquire)
● NEVER dismiss requests for accommodation out of hand
● Have standardized process for assessment
● Obtain info re how disability affects job performance & appropriate
accommodations
○Request (medical) documentation
● Work with employee to understand how ground intersects with job
duties
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Accommodation: A Joint Process
● Employees must participate in accommodation process
● Cannot request accommodation & refuse
● Cannot rely on privacy rights to refuse to disclose info that is necessary
for employer to assess need and options
● Otherwise claim will fail
● Privacy vs accommodation: can’t have it both ways
BUT
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What Can You Ask For?
Limitations on ability to carry out job functions
Then:
● Assess need for accommodation
● Assess accommodation options
● Evaluate costs/implications
● Implement if required
Remember purpose: prevent barriers for
people that can work
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Reasonable Accommodation is Requirement
● Fretz v. BDO Canada LLP: Employee is not entitled to their preferred
form of accommodation
○Hearing impaired interviewee wanted interpreter
○Respondent provided keyboards and computer screens to communicate
○HRTO: This was NOT failure to accommodate
Employee must accept reasonable proposals for accommodation and
participate in reasonable accommodation schemes.
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Don’t
●Assume privacy law means you can’t ask for more detail
●Request specific diagnosis
●Request information irrelevant to job duties
●Request entire medical file (of the employee or family)
●Make assumptions or judgements
●Turn “a blind eye” or be wilfully blind
○ remember duty to inquire
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You have a long-serving salesperson that had consistent performance and sales for 17
years, but in 2019, his sales dropped by 60% and his work product was sub-par. Quotes
were late, clients complained of missed meetings, and he was often “MIA”. You sit down to
discuss the performance concerns, and he breaks down, telling you that his wife left him,
he can’t sleep or eat, and he can’t focus on his work. At the suggestion of a friend, he
recently started seeing a therapist who thinks he is likely suffering from depression,
though there is no official diagnosis yet.
What do you do?
Case Study

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Accommodating Addictions
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●Addiction = Disability
●Duty to accommodate applies
●Alcohol & drugs = clear duty if addiction
●What about gambling, sex?
●Note Competing duties:
○reasonable precaution to protect workers
vs
○duty to accommodate

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Cannabis: Different Types of Users
Entitled to Accommodation?
●Casual/Recreational: No
●Addicts: Yes
●Prescription Users Yes
●Self-Medicators It Depends
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Smokers not Welcome?
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Any Questions?

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THANK YOU!
Feel free to contact us if we can be of assistance. We’d be glad to speak with you.
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905.209.6999
www.rudnerlaw.ca
info@rudnerlaw.ca
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Markham, ON L3R 6H3
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