Workers must play active role in accommodation
Employees entitled to 'reasonable form' of accommodation – not always their 'preferred' form
Feb 3, 2015
By Stuart Rudner
In recent years, the duty to accommodate disability has become an issue of great concern and conflict or employers and employees.
Unfortunately, many employees "decide" they are entitled to accommodation but are of the mistaken view they can insist upon their ideal form of accommodation while refusing to provide medical documentation or otherwise assist in the process of determining the need for accommodation and the appropriate form thereof.
While privacy laws exist to protect employees from having to disclose extraneous or irrelevant information, the law is quite clear that workers must play an active role in the accommodation process, and failure to do so can relieve the employer of its duty to accommodate. The law is also clear that employees are not entitled to their preferred form of accommodation, and that employers are entitled to determine a reasonable form of accommodation — even if it is not the employee's first choice.
The duty to accommodate extends to the interview and hiring stage, when employers are not dealing with employees, but candidates. Particularly in light of AODA — the Accessibility for Ontarians with a Disability Act — which requires that employers explicitly state that accommodation will be provided in the hiring process, employers must ensure they meet this obligation and do not deliberately or unintentionally discriminate against candidates with disabilities.
Recently, the Human Rights Tribunal of Ontario dealt with the case of Fretz v. BDO Canada LLP. In that case, the applicant was not seeking employment, but rather advice regarding her financial situation. She is deaf but speaks using American Sign Language. Unfortunately, a dispute arose regarding how communication would take place at the initial meeting. BDO proposed an in-person interview during which keyboards and a computer screen would be used to communicate back and forth. Apparently, BDO had done this in the past with hearing-impaired individuals. Notably, Fretz acknowledged this would be a workable accommodation, but expressed her strong preference for an interpreter. Further discussions ensued, with the intervention of a representative of the Canadian Hearing Society, but BDO insisted its form of accommodation was reasonable and it was not prepared to provide an interpreter for the interview.
The meeting never took place, and the applicant filed an application alleging she had been discriminated against on the basis of her disability. The claim was based upon the allegation that by refusing to provide a sign language interpreter, BDO had failed to meet its duty to accommodate. The tribunal disagreed, finding BDO had offered a perfectly appropriate and workable accommodation and that there was no basis for the applicant to refuse this.
While not technically related to the employment relationship, this case demonstrates that individuals seeking accommodation are not entitled to their ideal form. Employers, or anyone being asked to accommodate a disability, must assess the need for accommodation and the options that might be available. They are entitled to choose an option that is reasonable in the circumstances, regardless of the preference of the individual with the disability. This case is a reminder that the parties to a search for accommodation are to work collaboratively, and that neither one is entitled to take an unreasonable position. Those being asked to accommodate cannot simply refuse, but must assess the need and options available. Those seeking accommodation cannot refuse reasonable forms of accommodation, nor can they refuse to provide medical evidence to support their request.
Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
. He can be reached at email@example.com