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The complexities of complying with the duty to accommodate

Under human rights legislation, including the British Columbia Human Rights Code and the Canadian Human Rights Act, employers must adjust workplace practices, policies and rules to allow full participation by all employees up to the point of undue hardship. This means that they have a duty to accommodate employees with a variety of personal circumstances.

A failure to provide accommodation might constitute discrimination, unless the employer can show that the accommodation requested would truly impose undue hardship, or that a bona fide occupational qualification exists that the employee genuinely must be able to meet for the role.

To comply with this duty to accommodate as an employer or a service provider, you may be required to treat different employees differently – a measure of substantive equality instead of formal equality. All of your employees should have equal opportunities to excel to the greatest extent possible and regardless of their religion, physical or mental disability, family status, or other personal circumstances protected by human rights legislation.

What circumstances could require you to make accommodations?

The duty to accommodate and disability management issues will often be unique and fact-specific, often requiring case-by-case measures to ensure that each individual or group of employees has the opportunity to fully participate in the workplace. The following are examples of situations where this could apply:

  • A visually impaired job applicant may not be able to complete your company's written test. As a result, you may need to make alternative arrangements, such as a screen and software adapted for those with visual disabilities, or an oral rather than a written test.
  • Your business facilities might need modifications to provide wheelchair access to employees with physical disabilities.
  • You might have to allow employees time off work to go to medical appointments.
  • An employee with caregiving obligations to a special needs child or elderly parent might need individual schedule management to balance work and personal family commitments.

When could undue hardship claims come into play?

The fact that an employer has a duty to accommodate does not mean employees can take unreasonable advantage of their circumstances. There are limits to the lengths to which you must go as an employer to make these accommodations. With that said, the employer must be able to show that it has taken all reasonable steps to accommodate an employee’s disability or protected needs, up to the point of undue hardship. That may include defending an occupational qualification as bona fide and required for the role. The following examples could constitute undue hardship:

  • Accommodations that would create safety or health risks to other employees, such as permitting a blind pilot to fly a plane.
  • A compromise that would require significant financial expenditure that the company genuinely cannot afford.
  • If an employee of a small company with limited positions suffers an illness or debilitating injury and needs to be placed in a different position that would accommodate the disability, and the company has no suitable job to offer the employee.

Do you need legal assistance?

Whether you are an employer who has questions about your duty to accommodate, or an employee who believes your employer has not accommodated you to the point of undue hardship, there are resources readily available to you. An experienced lawyer who is well-versed in federal and provincial legislation related to all aspects of employment and human rights law can ensure your rights are protected and provide you with much-needed guidance.

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