Duty to Accommodate
This resource by the Government of Canada outlines the Duty to Accommodate and additional resources for addressing discrimination in the workplace.
Canadian law prohibits discrimination based on any of the 13 grounds identified in section 2 of the Canadian Human Rights Act (CHRA) and employers have a duty to accommodate employees to avoid such discrimination. Employers must accommodate employees who fall into the groups protected by the CHRA up to the point of undue hardship, taking into account health, safety and cost.Footnote1
To demonstrate that the duty to accommodate has been fulfilled, the employer must be able to document the process that was observed in considering and acting on the employee's request for accommodation. This document has been prepared to provide a general process to follow when assessing an accommodation request.
This document does not constitute legal advice, but is intended for use as a decision-making model to help departments and managers meet their duty to accommodate while acknowledging that accommodation is always decided on a case-by-case basis.
The document also describes the roles and responsibilities of key players in the accommodation process, such as managers, functional specialists (e.g., facilities, information technology, human resources/labour relations, occupational safety and health, compensation, legal services, Employee Assistance Program (EAP)), the employee representative, and the employee requesting the accommodation.
Prohibited Grounds of Discrimination
When you receive a request for accommodation or perceive a need, your first step is to determine whether the request falls under one or more of the following 13 grounds of discrimination that are prohibited under the Canadian Human Rights Act:
- National or ethnic origin;
- Sex (including discrimination because of pregnancy or childbirth);
- Sexual orientation;
- Gender identity or expression;
- Marital status;
- Genetic characteristics;
- Family status;
- Disability (a disability is a physical or mental condition that is permanent, ongoing, episodic or of some persistence, and is a substantial or significant limit on an individual's ability to carry out some of life's important functions or activities, such as employment. Disabilities include visible disabilities, such as the need for a wheelchair, and invisible disabilities, such as cognitive, behavioural or learning disabilities, and mental health issues); and
- Conviction for an offence for which a pardon has been granted.
The duty to accommodate is most often applied to situations involving disabilities, but it also applies to the other grounds, such as family status.
The duty to accommodate is not about employee preferences; it is about removing discriminatory barriers related to the 13 prohibited grounds of discrimination, up to the point of undue hardship to the employer.
The following are common situations that could trigger the need for accommodation:
- The employee is no longer able to perform a job or comply with current workplace policies or requirements as a result of changes in his or her situation. For example, the employee has developed a disability, has converted to a religion that imposes new obligations, or has experienced a change in family status.
- A revised policy or requirement has been introduced by the employer, and the employee is unable to comply. For example, when a shift schedule is changed, an employee is not able to change his or her working hours because of a medical condition or family circumstances that limit the employee's ability to work at night. The duty to accommodate arises if the policy change causes discrimination against the employee based on one of the 13 prohibited grounds.
- An employee tells you, "I'm having trouble getting to work at my scheduled start time because of new family responsibilities." You will need to get more information from the employee about the particular situation in order to assess further.
- An employee tells you that he or she would like a new office chair because the present one is uncomfortable. This statement is insufficient for you to determine whether this is a request for a workplace accommodation. You should therefore clarify with the employee whether the reason for the request arises from a medical requirement.
Performance and the Duty to Accommodate
Performance problems can sometimes tell you that there may be a need to accommodate, even when the employee has not asked for an accommodation. As a manager, you are obligated in certain circumstances to initiate action to determine if an accommodation is needed, even if the employee has not asked for it.Footnote2 You are encouraged to consult with your organization's human resources/labour relations functional specialists for guidance. The following are some examples of signs that might require further investigation to assess whether accommodation is needed:
- Feedback from co-workers indicating that the employee is behaving erratically;
- A sudden drop in attendance and increase in sick leave use;
- An increase in lateness;
- Sudden changes in behaviour; or
- Unusually poor work performance.
If you have spoken to the employee about specific behaviours and offered the option of accommodation on several occasions, and the individual does not wish to pursue the matter, remember to document the steps you took to show that you did everything you could to help the employee and that you fulfilled your obligations regarding the duty to accommodate. Be sure to advise the employee of available services, such as EAP.
Click here for more details and definitions including Supporting Documentation: Medical and Other, Limits on the Duty to Accommodate, Employee and Candidate Responsibilities, Where To Go for Help, and more!