What should employers know about the duty to accommodate?
Watch the webinar to gain insights on creating an inclusive workplace.
The spotlight on mental health in the workplace has recently intensified, unravelling a convergence of legal considerations, human empathy, and organizational policy adjustments. It is becoming increasingly clear that mental health is not only a societal concern but a critical workplace issue with significant implications for employers across Canada.
ADP Canada Co (ADP) hosted a webinar in partnership with Spring Law to shed light on the complexities surrounding the duty to accommodate mental health and disabilities, offering insights for employers aiming to navigate these waters thoughtfully.
Insights on accommodation
The webinar featured Caitlin Hurren, seasoned legal counsel at ADP, with extensive experience representing a wide array of clientele, including international corporations and small businesses. Alongside her was Lexa Cutler from Spring Law, a notable figure in labour and employment law known for her empathetic and efficient approach to resolving workplace legal issues. Their experience provided a rich foundation for the discussions to follow.
The current state of mental health in the workplace
Mental health issues represent the leading cause of disability on a global level, affecting 450 million people worldwide. According to the Centre for Addiction and Mental Health, The Crisis is Real, a staggering 6.7 million Canadians are battling mental health challenges, and by the age of forty, one in two Canadians will have experienced mental illness. These figures highlight the prevalence of mental health disabilities and the essential need for adequate accommodation in the workplace.
Employee accommodation – where to start?
If you encounter an accommodation issue at your workplace, knowing where to start can help. The foundation for addressing these issues begins with understanding human rights legislation, which varies across Canada. Each jurisdiction has a form of human rights legislation, often referred to as the Human Rights Code or Act, except in Quebec, where it is known as the Charter of Human Rights and Freedoms. This legislation outlines the prohibited grounds of discrimination, defines what constitutes discrimination or harassment in the workplace, and details the remedies available to employees. Legislative frameworks are similar but not identical across provinces and territories, so if you have concerns, it is always a good idea to consult the specific laws of your jurisdiction.
Additionally, you could examine the policies within your workplace, such as accommodation, drug and alcohol policies, and policies on discrimination and workplace violence/harassment. These policies typically detail the accommodation process and specific procedures relevant to your workplace. If such policies are not yet established, their development may be worth considering as they can make the accommodation process more efficient and consistent.
Lastly, do not overlook the value of employee assistance programs and benefit plans, which can be an invaluable resource for employees facing mental health challenges.
Understanding the duty to accommodate
At its core, the duty to accommodate involves an employer’s obligation to adjust rules, policies, or practices to enable employees with disabilities to fully participate in the workplace to the point of undue hardship.
This duty is complex and has two components: the procedural duty, which involves obtaining the necessary information to assess the employee’s disability and available accommodations, and the substantive component, which is the actual implementation of appropriate accommodations to the point of undue hardship. Employers must fulfill both the procedural and substantive components to meet their duty to accommodate.
Steps in the accommodation process
The following steps can help with the accommodation process:
1. Inquire:
The first step in the accommodation process is to inquire. For this step, it is important to highlight that an employer’s duty is to inquire rather than investigate. The initial step should not be approached with suspicion or as an adversarial act, but rather as a necessary means of gathering information. This approach aims to understand the employee’s needs and determine the best way to provide accommodation, fulfilling both the procedural and substantive duties required by law. The term “disability” is broadly defined in human rights law, covering conditions ranging from anxiety and depression to addictions, and it is best practice for employers to start from a place of inclusion rather than exclusion when an accommodation issue arises. While accommodation often begins with a request from an employee, there is a significant duty on the employer to proactively inquire about potential needs for accommodation, especially when dealing with mental health issues or substance use, which may be less visible and highly stigmatized. This duty to inquire is particularly important in safety-sensitive positions, where the personal challenges of an employee could impact their performance and the safety of others. Inquiries should be managed with discretion, maintaining confidentiality and creating a safe space for employees to seek help.
2. Substantiate:
The second step in the accommodation process is to substantiate. Accommodation requests should be handled with a balanced approach. Employers have a duty to accept these requests in good faith, only requiring medical information if it is necessary to understand the presence of a disability, its impact on an employee’s ability to work, and the necessary accommodations. Employers should use standardized forms, like a Functional Abilities Form (FAF), to create a seamless process. There is a critical distinction between requesting a diagnosis—a formal medical label—and understanding the nature of an injury or illness in plain language. This can be essential for minimal intrusion while fulfilling the employer’s duty to accommodate. Employers often face challenges in balancing the need for information against respecting employee privacy, therefore, a proportional approach to requests based on the situation’s specifics is recommended.
3. Accommodate:
The third step in the accommodation process is the actual accommodation. When discussing the complex process of accommodating mental and physical disabilities in the workplace, it is important to focus on both the overall framework and the distinct responsibilities shouldered by employees and employers. The accommodation process is guided by principles that focus on the need for individualization, ensuring that each accommodation is tailored to meet the individual’s unique needs. This emphasizes the understanding that there is no one-size-fits-all solution. Accommodations should evolve over time to remain effective and should be designed to encourage integration and full participation, creating a barrier-free, inclusive work environment. The goal is always to provide the most appropriate accommodation without causing undue hardship to the employer and to strive for solutions that offer equal opportunities and benefits. On the one hand, employees are responsible for making their needs known, providing necessary information about their restrictions, and actively participating in the search for viable accommodation solutions. They should also aim to meet job standards post-accommodation and work cooperatively with those involved in the accommodation process. On the other hand, employers carry the duty to proactively inquire about potential needs, accept requests in good faith, rigorously explore accommodation options, and diligently document all relevant processes. They should also prioritize confidentiality, limit requests for information to what’s directly relevant, and implement accommodations in a timely manner. This collaborative effort between employee and employer is critical in establishing a work environment that respects and responds to the diverse needs of all employees, ensuring everyone can contribute effectively and without barriers.
What is undue hardship:
In discussing the complexities surrounding the duty of employers to accommodate employees with disabilities, it is important to highlight the concept of “undue hardship.” This notion suggests that while employers are obligated to provide accommodations, this duty is not without its limits. The extent of accommodation required is capped at the point of undue hardship on behalf of the employer. However, the definition of undue hardship is not straightforward and varies significantly with each case and employer. Factors such as the ability of the employee to perform core duties with the accommodation, safety considerations, and the financial cost to the employer are critical in assessing undue hardship. While there is not a clear definition, the impact on an employer must be demonstrably burdensome or pose significant safety implications for them to successfully claim undue hardship.
Examples of workplace accommodation:
Fulfilling the duty to accommodate may vary in practice as each situation is unique, and the accommodation should be tailored to the individual employee and their specific needs. Here are a few examples:
- Modifying job duties and deadlines
- Modifying break times or policies
- Flexible work schedules allowances
- Time off for recovery or treatment
4. Communicate:
The final stage in the accommodation process is communication. In the realm of employee accommodation, the importance of effective communication cannot be overstated. Employers are responsible for implementing accommodations promptly and ensuring a transparent, ongoing dialogue with their employees throughout the accommodation process. Recognizing that this process can often be time-consuming and potentially stressful for employees, employers should keep all parties informed of the steps being taken. Keeping detailed records, whether they be notes from calls with healthcare providers, internal discussions regarding accommodation options, or communications with the employee in question, is good practice and may serve as a vital tool for defending the process, if ever challenged. Such diligence ensures that employers not only adhere to their responsibilities under the law but also support their employees with empathy and understanding, fostering a more inclusive and supportive workplace environment.
6 key takeaways
- Duty to initiate accommodation dialogue:
Employers are expected to proactively address circumstances that might require special workplace adjustments and engage in conversations with employees regarding potential accommodations. - Good faith in accommodation requests:
It is fundamental that both parties—employers and employees alike—process and handle every accommodation request with sincerity and trust, presuming the validity of the need. - Collaborative process requirement:
Both employer and employee bear the responsibility to actively engage in the accommodation process, ensuring a thorough and effective exploration of potential adjustments. - Commitment to accommodate fully:
Employers should provide employees with the necessary accommodations to fulfill their job duties, to the point of undue hardship. - Importance of communication:
Open and ongoing dialogue between all parties is important in uncovering innovative solutions that benefit both the employee and the organization, fostering a positive outcome. - Importance of documentation:
Meticulously documenting each step of the accommodation process is important as it provides a clear record of efforts, considerations, and decisions made throughout the journey.
The information provided in this document is for informational purposes only and not for the purpose of providing legal, accounting, or tax advice. The information and services ADP provides should not be deemed a substitute for the advice of any such professional. Such information is by nature subject to revision and may not be the most current information available.
