What's involved with undue hardship and bona fide occupational requirements
Exclusive to Canadian HR Reporter from Rudner Law.
Remote and hybrid work are now the norm, and the circumstances that an employer must accommodate continue to expand. For example, the need for accommodation due to childcare responsibilities has dramatically shifted in light of the COVID-19 pandemic. Many parents are still struggling as even if daycares and school remain open, their child may be at home with fever. These parents may require accommodation since it's difficult to find alternate childcare on short notice.
In fact, employers are obligated to accommodate individuals to the point of “undue hardship” where the need for accommodation relates to a ground protected by human rights legislation, such as disability and family status. Notably, undue hardship includes cost and safety considerations. So employers will not be required to risk the safety of others in order to accommodate one employee.
Aside from undue hardship, another limitation is a bona fide occupational requirement (BFOR), meaning a skill or characteristic that is essential to a job, without which the job cannot be performed. Both undue hardship and BFOR are high standards to meet.
Accommodation is a two-way street
The accommodation process is a two-way street with both employers and employees having responsibilities to fulfill. While employees must participate in the accommodation process by providing appropriate information, employers are obligated to genuinely consider any request for accommodation. In particular, as part of the procedural duty to accommodate, employers must obtain all relevant information about the employee’s need for accommodation (e.g. the employee's disability), at least where it is readily available.
For example, you can include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work.
Failure to accommodate an employee's legitimate needs is a serious breach of their human rights. As was stated in ADGA Group Consultants Inc v Lane: "The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural” duty to accommodate.”
Limitations on ability to carry out job functions
When an employee requests accommodation, the employer is entitled to request sufficient information, including medical documentation, in order to allow them to understand the specific limitations upon the employee’s ability to carry out their duties that require accommodation. You do not have to accept generic notes without any meaningful information.
For example, in the case of accommodating employees who have mental health related concerns, an employer should obtain as much information about the employee’s restrictions and limitations as possible, including determining the impact on the employee of consuming medication relating to their disability and their ability to carry out their duties. This would require clear documentation from the prescribing physician regarding the impact of the medication on the individual, as the need for accommodation would have to be assessed on a case-by-case basis.
However, employers are not entitled to know the employee’s diagnosis or their entire medical file.
Best practices for employers
Employers would be wise to have an accommodation policy and process and to adopt the following practice tips:
- Have a process for responding to all requests for accommodation, ensure it is a two-way dialogue between the employer and the employee (and a three-way dialogue if a union is involved), and maintain communication with the employee throughout the process.
- Do not dismiss any requests out of hand.
- Require appropriate information, including medical documentation if applicable, speaking directly to the employee’s ability to do the job. Do not request specific diagnosis, information irrelevant to job duties, or the entire medical file. Requests for information should be justifiable.
- Research and educate yourself. Work with the employee to understand their unique needs and limitations, and how the ground intersects with job duties. Do not stereotype.
- Assess whether there is a legitimate need for accommodation.
- Consider options for accommodation. Employees are not entitled to their preferred form of accommodation but to a reasonable accommodation. Remember, some hardship is acceptable.
- Document all considerations and assessments. This will help prove that you have taken every step up to the point of undue hardship, and as a result, you will be in a much stronger position to defend a discrimination claim.
- If you cannot accommodate without undue hardship, clearly explain this to the employee and be prepared to show why this is the case.
- Maintain confidentiality.
- Monitor and adjust the steps taken, as the employee’s needs or the employer’s circumstances might change over time.
And perhaps most importantly, if you think you need an employment lawyer, you probably do. Seek legal advice to understand your rights and obligations, ensure you are complying with the law, and strategically manage your workplace.
Nadia Zaman is an associate at Rudner Law in Toronto. She can be reached at (416) 864-8503 or [email protected].