Accommodation requests are tricky to deal with and can lead to unnecessary legal action if handled in the wrong way. If you receive a request for accommodation from an employee, make sure you know your rights and limitations, as well as your obligations, before responding.
What Is Employee Accommodation?
According to the Ontario Human Rights Code (the Code)
“every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.”
In the context of employment, the word accommodation is used to describe the duty of an employer to give equal access and opportunities to employees under the Code-protected grounds. Accommodation is an integral part of the right to equal treatment in the workplace. For that reason, when an employee is negatively affected by treatment related to the protected grounds, it is considered discrimination. Failure to accommodate an employee with a legitimate accommodation request based on a Code-protected ground would likely result in a human rights complaint or lawsuit for discrimination.
Your Accommodation Obligations
Employers must identify and provide reasonable accommodation to employees who require it up to the point of undue hardship [the Code s. 17(2)]. Let’s take a look at the two components of this requirement.
An accommodation can range from changing a schedule due to an employee’s request to reduce their hours to temporarily changing an employee’s duties (e.g., having a dental assistant do administrative duties). An accommodation may be considered appropriate if it results in inclusion and equal opportunity, meets the individual’s needs related to the relevant ground, and effectively addresses any systemic issues.
While your goal should be to work with the employee to find a reasonable solution, this does not necessarily mean a “perfect solution”. What is reasonable for one employee or one dental practice may not be reasonable for another.
The test is not whether it is impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace of duties to enable the employee to do [their] work.
-Supreme Court of Canada (Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ))
Just because your employee has the legal right to be accommodated, it does not give them the right to demand their ideal or preferred accommodation.
The duty to accommodate extends up to the point of undue hardship. Undue hardship is more than just regular hardship, but establishing that point is not easy. To determine what is undue hardship, courts and tribunals are only permitted to look at:
- outside sources of funding, if any; and
- health and safety requirements, if any.
However, there is no set formula for deciding what is undue hardship, and it can look different for two seemingly similar dental practices. Assumptions or beliefs about what is or is not possible for your practice does not count. You should make serious, genuine, and documented efforts to accommodate. And your employee should be involved as much as reasonably possible.
To help determine what undue hardship looks like for your business, consider health & safety, costs of running the business, interchangeability within your dental practice, and your legitimate operational requirements.
The Supreme Court of Canada has said the employer’s duty to accommodate ends where the employee is no longer able to fulfill their job’s basic obligations for the foreseeable future.
But once that pointor the point of undue hardship has been reached, it is not simply “the end.” The employment contract may then be considered to be frustrated no longer able to be fulfilled through no fault of either party and the employee may still be entitled to termination pay.
In some cases, an employer’s duty to accommodate an employee is limited when legitimate work duties cannot be accommodated. These are called bona fide occupational requirements (BFORs). Simply put, a BFOR is a standard or criteria that allows an employer to “discriminate” based on an otherwise prohibited ground provided there is a legitimate reason to do so. But beware, BFORs cannot be determined based on assumptions or personal beliefs but on genuine requirements. According to the Human Rights Tribunal, in order to establish a BFOR:
- The standard must be rationally connected to performing the job. In employment law, this has come to mean the ability to work safely and efficiently. Nevertheless, the general purpose for having the standard itself must be valid.
- The standard must be made in an honest and good faith belief, without the intention to discriminate against an employee. Even a reasonable BFOR could be disqualified if it is found to be motivated by discrimination.
- The standard must be reasonably necessary for the employer to accomplish its purpose and not any higher. It would be impossible to make accommodations without reaching the point of undue hardship for the employer.
Ultimately, the person who wants to justify a discriminatory requirement, rule or standard must show that they incorporated accommodation into the standard to the point of undue hardship. This means the requirement was designed or changed to include as many people as possible and that any remaining individual needs were accommodated, short of undue hardship.
When faced with an accommodation request from an employee, there is a lot to consider. And because each situation is unique, it is important to get professional, legal advice before taking any actions. Some additional steps to begin with are:
- Consult with and follow your office policies on accommodation.
- Having a clear and valid policy on accommodation – and following it – will help prevent misunderstandings (and litigation) in the future.
- Ask your employee to provide a written statement of their need for accommodation and any evidence that is reasonable in the circumstances.
- You need to have all reasonable information in front of you to provide an employee an accommodation. Obtain all the information that is reasonable to create an accommodation plan. This could include medical notes, regular written updates, compliance with a treatment plan, or showing they are fit to work.
- Determine if an accommodation is required.
- Don’t automatically accommodate an issue unrelated to a Code-protected ground. For example, an employer is not required to accommodate an employee’s second job, hobbies, or best friend’s wedding.
- You also don’t have to tolerate an employee reporting to work while they are unable to perform their job duties safely. Don’t compromise safety to keep an employee in a job they cannot perform if modified/alternate duties are not possible.
If you are unsure if or how to accommodate an employee, we can help guide you through the process. If you have any questions about employment laws, need advice about your obligations as an employer, or need help updating or implementing a new policy manual, please contact us. We are happy to help and offer more information on these and any employment issues. DMC is dedicated to helping dentists understand and minimize the risks associated with being an employer. Send DMC an email or give our Employment Law Team a call at 416-443-9280 extension 206.
And for more information on recent changes, please refer to our Employment Law Changes & Updates section for the latest announcements in provincial and federal policies.