The Ontario Human Rights Tribunal did an excellent job of succinctly explaining the duty to accommodate in Black v. Etobicoke Ironworks:
The duty to accommodate has procedural and substantive components. Procedurally, the employer has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required in order to allow the employee to participate fully in the workplace. The substantive duty requires the employer to make the modifications or provide the accommodation necessary in order to allow the employee to participate fully in the workplace, such as by modifying duties or hours or the workplace itself, as the case may be, up to the point of undue hardship.
The Tribunal in Hamilton-Wentworth District School Board recently discussed the obligations of the employer and the employee in the accommodation and cited the Ontario Human Rights Commission Guidelines on Accommodation:
The person with a disability is required to:
- advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)
- make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation
- answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed
- participate in discussions regarding possible accommodation solutions
- co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability
- meet agreed-upon performance and job standards once accommodation is provided
- work with the accommodation provider on an ongoing basis to manage the accommodation process
- discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff.
The employer is required to:
- accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
- obtain expert opinion or advice where needed
- take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate
- keep a record of the accommodation request and action taken
- maintain confidentiality
- limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request
- grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language
- bear the cost of any required medical information or documentation. For example, doctors’ notes and letters setting out accommodation needs, should be paid for by the employer.
The Tribunal concluded in both cases that the employer had failed to fulfill its duty to accommodate under the Human Rights Code. In Hamilton-Wentworth District School Board, the Tribunal held that, in the circumstances of that case, the employer "failed to actively, promptly and diligently canvas possible solutions to the applicant's need for accommodation".
Though both cases did not go the employer's way, they are worth reading closely as many important lessons can be gleaned from them. Recognizing that each case will need to be considered on its individual merits, the cases suggest that employers should take a reasonable and proactive approach to accommodation. Being patient is important and has its place, but employers should be aware of their obligations and ensure that they are deliberate and strategic in meeting those obligations.
