Accommodation usually takes the form of accommodating an employee with a disability. Following the Supreme Court of Canada’s 1999 decision in Meiorin, employers are now required to build accommodation into workplace standards. This involves a finely tuned analysis of the necessary requirements to do a job safely and efficiently.
The good news for employers is that many common HR policies already address accommodation. For example, attendance management programs which counsel and advise employees of unacceptable attendance levels may be one form of accommodation. This is especially true where one goal of the program is to establish whether the absence is due to a medical condition and if so, what assistance needs to be provided to the employee to promote regular attendance in the future.
Equally, many employers have employee assistance programs in place or provide opportunities for modified work for employees who are able to do some work within medical restrictions.
These forms of employer initiatives are solid building blocks in fulfilling the duty to accommodate, but on their own are not enough.
Since Meiorin, the key point to consider is that accommodation must now be individually tailored to accommodate individual circumstances. Therefore, when attempting to accommodate, the employer should undertake a meaningful consideration of job alternatives. The employer may not rely on general rules or anecdotal propositions to deny a person work in a particular job.
The employer may not arbitrarily determine that a person with a particular disability is not able to perform a specific job. There is an obligation to objectively assess whether the person could fill the role with some form of accommodation.
Employers need only accommodate a person to the point of undue hardship, but the process is complicated because of a feeling that undue hardship is a moving target. Many employers encounter difficulties in implementing a process for accommodation when it is unknown what standards must be met. While it is difficult to predict exactly what will constitute undue hardship, issues such as safety and cost are considerations.
If a proper process is followed, the employer will more likely be found to have met its duty to accommodate to the point of undue hardship. Where an accommodation effort is reviewed for compliance with human rights legislation, the focus narrows in on the process that was followed, rather than on the result of those efforts.
Key features to the accommodation process
What process should the employer follow when attempting to accommodate employees? There are several touchstones to creating an accommodation plan that will withstand human rights scrutiny.
The first step in the accommodation process is to assemble all necessary medical information to determine whether there is in fact a disability and also what the prognosis for recovery is. This part of the process may take the form of physical demands or functional ability analysis by a physician, occupational therapist, or other medical professional. The medical information the employer assembles should demonstrate the extent of the restrictions (if any), and the type of accommodation which would be required to have the individual work within their capabilities.
The employer should be careful to ensure the medical information and prognosis directly relate to the job requirements. Further, the employer must generally obtain the voluntary, written consent of the employee for the release of medical information.
Once the medical evidence of the disability, the restrictions and the prognosis are obtained, the second step is to assess the employee’s job to determine whether it can be modified without causing the employer undue hardship. The employer should analyze the physical demands of the job, and determine whether it could be performed with modifications. These modifications may take the form of a redesign of the method of performing the work, a re-bundling or re-configuration of duties, the use of special equipment or assisting devices, or a modification to the employee’s schedule.
Generally, if the employee can not be accommodated in her own job, the employer should conduct a thorough review of any other available jobs. The employer should consider assigning the disabled employee to another job, placing the employee on a temporary assignment or bundling together various tasks which fit into the employee’s capabilities. In the unionized context, this review of other available jobs will include possible positions both inside and outside of the employee’s bargaining unit.
In finding a position that fits within the employee’s capabilities, the employee has a duty to facilitate her own accommodation. An employee must provide full information regarding any restrictions and assist the employer in modifying the job. In the unionized setting, the union also has a duty to co-operate in the accommodation. The employer and the union ought to explore the impact of the accommodation on the rights of other members of the bargaining unit. Further, the employer and the union should seek to fit the accommodation within any other limitations imposed on the parties by the collective agreement (such as seniority lists or job posting provisions).
The employer must ensure the accommodation method chosen does not compromise the dignity of the employee.
The third step in the accommodation process is the assessment of whether the proposed accommodation would result in undue hardship to the employer. This assessment involves:
•a review of the size of the employer’s operation;
•the costs associated with the accommodation (including the impact on the employer’s bottom line);
•whether there are outside sources of funding available to assist in the accommodation (workers’ compensation, other government funding or other types of private funding);
•a review of the health and safety risks associated with the accommodation; and
•the impact on other employees, including the impact on bargaining unit members where a collective agreement is in place.
The final step of the accommodation process involves regular monitoring. The employer and the employee must monitor any changes in circumstances which may impact upon the accommodation initiative. The employee’s condition should be consistently monitored for improvement or deterioration. The employee, the employer and the medical professionals must act in concert to ensure the accommodation needs and measures taken meet the employee’s needs.
Finally, it is important for the employer to document all aspects of the accommodation process. This documentation should include such things as updated medical information from the employee, the employee’s absenteeism records and records of accommodation alternatives that were considered. The records of accommodation should include reasons why alternatives were either accepted or rejected, notes and records of all discussions with the employee (and the employee’s union), copies of correspondence sent to the employee and the union, and records of the assessment of the cost and health and safety impact of all accommodation alternatives.
By consistently monitoring the accommodation effort and maintaining up-to-date records during each part of the process, the employer better positions itself in the event that its efforts at accommodating an employee are later challenged under human rights legislation.
Ron LeClair is an associate in the London, Ont. office of Filion Wakely Thorup Angeletti LLP. For more information contact (519) 433-7270, [email protected] or [email protected]. The author gratefully acknowledges the assistance of Lance Ceaser in the preparation of this article.
The good news for employers is that many common HR policies already address accommodation. For example, attendance management programs which counsel and advise employees of unacceptable attendance levels may be one form of accommodation. This is especially true where one goal of the program is to establish whether the absence is due to a medical condition and if so, what assistance needs to be provided to the employee to promote regular attendance in the future.
Equally, many employers have employee assistance programs in place or provide opportunities for modified work for employees who are able to do some work within medical restrictions.
These forms of employer initiatives are solid building blocks in fulfilling the duty to accommodate, but on their own are not enough.
Since Meiorin, the key point to consider is that accommodation must now be individually tailored to accommodate individual circumstances. Therefore, when attempting to accommodate, the employer should undertake a meaningful consideration of job alternatives. The employer may not rely on general rules or anecdotal propositions to deny a person work in a particular job.
The employer may not arbitrarily determine that a person with a particular disability is not able to perform a specific job. There is an obligation to objectively assess whether the person could fill the role with some form of accommodation.
Employers need only accommodate a person to the point of undue hardship, but the process is complicated because of a feeling that undue hardship is a moving target. Many employers encounter difficulties in implementing a process for accommodation when it is unknown what standards must be met. While it is difficult to predict exactly what will constitute undue hardship, issues such as safety and cost are considerations.
If a proper process is followed, the employer will more likely be found to have met its duty to accommodate to the point of undue hardship. Where an accommodation effort is reviewed for compliance with human rights legislation, the focus narrows in on the process that was followed, rather than on the result of those efforts.
Key features to the accommodation process
What process should the employer follow when attempting to accommodate employees? There are several touchstones to creating an accommodation plan that will withstand human rights scrutiny.
The first step in the accommodation process is to assemble all necessary medical information to determine whether there is in fact a disability and also what the prognosis for recovery is. This part of the process may take the form of physical demands or functional ability analysis by a physician, occupational therapist, or other medical professional. The medical information the employer assembles should demonstrate the extent of the restrictions (if any), and the type of accommodation which would be required to have the individual work within their capabilities.
The employer should be careful to ensure the medical information and prognosis directly relate to the job requirements. Further, the employer must generally obtain the voluntary, written consent of the employee for the release of medical information.
Once the medical evidence of the disability, the restrictions and the prognosis are obtained, the second step is to assess the employee’s job to determine whether it can be modified without causing the employer undue hardship. The employer should analyze the physical demands of the job, and determine whether it could be performed with modifications. These modifications may take the form of a redesign of the method of performing the work, a re-bundling or re-configuration of duties, the use of special equipment or assisting devices, or a modification to the employee’s schedule.
Generally, if the employee can not be accommodated in her own job, the employer should conduct a thorough review of any other available jobs. The employer should consider assigning the disabled employee to another job, placing the employee on a temporary assignment or bundling together various tasks which fit into the employee’s capabilities. In the unionized context, this review of other available jobs will include possible positions both inside and outside of the employee’s bargaining unit.
In finding a position that fits within the employee’s capabilities, the employee has a duty to facilitate her own accommodation. An employee must provide full information regarding any restrictions and assist the employer in modifying the job. In the unionized setting, the union also has a duty to co-operate in the accommodation. The employer and the union ought to explore the impact of the accommodation on the rights of other members of the bargaining unit. Further, the employer and the union should seek to fit the accommodation within any other limitations imposed on the parties by the collective agreement (such as seniority lists or job posting provisions).
The employer must ensure the accommodation method chosen does not compromise the dignity of the employee.
The third step in the accommodation process is the assessment of whether the proposed accommodation would result in undue hardship to the employer. This assessment involves:
•a review of the size of the employer’s operation;
•the costs associated with the accommodation (including the impact on the employer’s bottom line);
•whether there are outside sources of funding available to assist in the accommodation (workers’ compensation, other government funding or other types of private funding);
•a review of the health and safety risks associated with the accommodation; and
•the impact on other employees, including the impact on bargaining unit members where a collective agreement is in place.
The final step of the accommodation process involves regular monitoring. The employer and the employee must monitor any changes in circumstances which may impact upon the accommodation initiative. The employee’s condition should be consistently monitored for improvement or deterioration. The employee, the employer and the medical professionals must act in concert to ensure the accommodation needs and measures taken meet the employee’s needs.
Finally, it is important for the employer to document all aspects of the accommodation process. This documentation should include such things as updated medical information from the employee, the employee’s absenteeism records and records of accommodation alternatives that were considered. The records of accommodation should include reasons why alternatives were either accepted or rejected, notes and records of all discussions with the employee (and the employee’s union), copies of correspondence sent to the employee and the union, and records of the assessment of the cost and health and safety impact of all accommodation alternatives.
By consistently monitoring the accommodation effort and maintaining up-to-date records during each part of the process, the employer better positions itself in the event that its efforts at accommodating an employee are later challenged under human rights legislation.
Ron LeClair is an associate in the London, Ont. office of Filion Wakely Thorup Angeletti LLP. For more information contact (519) 433-7270, [email protected] or [email protected]. The author gratefully acknowledges the assistance of Lance Ceaser in the preparation of this article.
