July 10, 2018

[HR] Reasonable Accommodation and Undue Hardship

July 10, 2018

An employer is not required to make an accommodation for an employee, if it would impose an "undue hardship" on the operation of the employer's business. However, some degree of hardship is acceptable.What is undue hardship?The Human Rights Code prescribes three key considerations when assessing whether an accommodation would cause undue hardship to an employer: Cost, Availability of outside sources of funding, and Health & Safety Risks to organization.Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship on providing the accommodation.Accommodation is a way of helping your employees work more effectively by overcoming limitations caused by disabilities. Usually, accommodations are easy to implement, inexpensive (less than $500), and demonstrate a commitment to a healthier, more equitable workplace. Per the Canada Human Rights Code, accommodation is required when an employee’s disability results in “functional limitations” preventing them from performing an “essential duty” of their job. It is key to note that Supreme Court of Canada decisions have placed the burden on employers to demonstrate how providing accommodations will cause undue hardship (usually by compromising safety or jeopardizing the organization’s solvency.)Are there limits on the duty to accommodate?The law does set limits on the obligation of an employer to accommodate an employee. In Canada, the limits are described as either “reasonable” accommodation or accommodation to the point of “undue hardship,” depending on the legislative requirements. In reality, there is very little difference between those two concepts.The Ontario Human Rights Commission (OHRC) has published guidelines to the duty to accommodate. While they’re not law, they provide guidance as to the OHRC’s interpretation of obligations under the Ontario Human Rights Code. Each province has varied expectations with regards to accommodation, and the duty to accommodate is an individual solution.While there is no list of required accommodations. Accommodations are determined by the employer and employee, and involve certain principles:• The accommodation must respect the dignity of the individual. This means that the process used to request accommodation, and the accommodation itself, must not further stigmatize or prejudice the individual.• Information about an accommodation should be kept confidential. The individual should feel comfortable that their request for an accommodation will be greeted with respect and not ridiculed.• Accommodation must also be consistent with the overarching goals of full integration, rather than segregation, except where specifically requested by the employee needing accommodation individual.• Since discrimination includes workplace harassment and prejudice towards people with mental health problems, accommodation may include activities such as workplace education, issuing a clear statement that harassment will not be tolerated, and ensuring employees are aware that they can report instances of inappropriate comments or attitudes in the workplace.• People returning to work after a disability absence have a right to accommodation. This may include alternative work as well as accommodation so they can continue in their original job.How does the employer know if they’ve met the duty to accommodate criteria?In determining whether an employer has met their, one must consider the process the employer used as well as the actual accommodation. Among the criteria that are typically considered by courts are:• Did the employer try to find a way to meet the individual’s needs in a way that was not discriminatory?• If there were alternatives, what were the reasons they were not used?• Is there a way for an employer to meet their objectives in a way that is less discriminatory?• Is the standard, policy or procedure necessary for the employer to accomplish their objectives, and is it broader than it needs to be?• Have all parties cooperated in search for an alternative? This includes unions and professional associations.• Is the cost of the accommodation or the impact of the accommodation so great that it changes the nature of the employer’s business?The bottom line.To claim the undue hardship defense, the organization responsible for making the accommodation has the onus of proof. It is not up to the person with a disability to prove that the accommodation can be accomplished without undue hardship. The nature of the evidence required to prove undue hardship must be objective, real, direct and, in the case of cost, quantifiable. The organization responsible for accommodation must provide facts, figures and scientific data or opinion to support a claim that the proposed accommodation in fact causes undue hardship. A mere statement, without supporting evidence, that the cost or risk is “too high” based on impressionistic views or stereotypes will not be sufficient.Sources: The Ontario Human Rights Commission (OHRC)The Canadian Human Rights Commission (CHRC)Ontario Ministry of Labour “Sample Individual Accommodation Plan Process


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