What is the ‘Duty to Accommodate’?

As legislation in Canada continues to grow and evolve, there’s one issue which employers seem to be perpetually perplexed with – accommodation.

As legislation in Canada continues to grow and evolve, there’s one issue which employers seem to be perpetually perplexed with – accommodation. The duty to accommodate is meant to prevent discrimination under the human rights legislation – protecting Canadian employees from being penalized with their employer.

But what does this mean for you?

We spoke to Erin Porter, partner at Fasken to find out more.

“Accommodation continues to be an issue that people want to speak about a lot,” prefaced Porter. “What are the obligations to accommodate people with disabilities, and what does the threshold of undue hardship really mean? It’s a difficult concept for employers to grasp.”

Porter explained that sometimes employers are under the misapprehension that they have to pay an employee for work which they otherwise wouldn’t need.

“You don’t have to create a job if someone’s not able to perform the essential duties of their position,” she told HRD. “Under the human rights legislation, an employer has an obligation to accommodate up to the point of undue hardship.”

Undue hardship deals with issues such as costs. For example, a large international cooperation would have a difficult time in arguing that paying out one employee’s salary would have a sizable enough impact on their bottom line. However, a smaller, family-run company could make the claim that this was undue hardship and has the propensity to bankrupt them.

Employers may also want to know information around the employee’s illness – if in fact the accommodation related to a disability or a medical issue. Porter explained that whilst there’s certain rules around what you can and cannot ask.

“There’s questions around what employers are able to know,” she told us. “For instance, what medical information can they request and what steps they must go through to try and attain that medical information.

“Firstly, employers should start with the employee’s own medical practitioner and ask for information from them. You can’t know the individual diagnosis – but you can ask about restrictions, i.e. what the employee is able to do.”