Accommodation: some important points to remember

  • Accommodation obligations do not give the employer additional rights with respect to employee information and employee privacy .
  • There is no requirement to provide a diagnosis of a disability to the employer.
  • Physicians have expertise in diagnosis and in treatment. They do not automatically have expertise on workplace assessments or assessments of functional limitations.
  • In cases of psychiatric (mental health) disabilities or substance addiction-related disabilities, where individuals are often likely to deny they have a problem, there is a higher responsibility on the employer and the union, because the individual is not likely to come forward or admit they have a disability. Employers and unions are expected to take some steps to inquire about the possibility of a mental health disability or addiction, if there are signs of it,, in order to comply with their accommodation obligations. Claiming that “one did not know about the disability” in these types of situations will not absolve organizations or individuals of their responsibilities. Having said that, individuals in these circumstances continue to have the responsibility to seek help and to accept it when inquiries are made.
  • Religious accommodation must afford individuals who have sincere religious beliefs to have their religious needs accommodated to the point of undue hardship. Universally recognized lists of “accepted” religions don’t exist. The key is to ensure that the entitlement to religious observance is not limited to the dominant group (e.g. Christmas and Good Friday). A case by case assessment is critical in ensuring that religious beliefs and values are accommodated to the point of undue hardship. Religious accommodation may include prayer breaks, accommodation of religious dress, and leave entitlement for religious observance.
  • Accommodation must be done in the manner that most respects the dignity of the individual who requires accommodation. Dignity is best respected when the individual who requires accommodation participates in the accommodation process and its outcomes.
  • The duty to accommodate is owed to both current employees and job applicants.
  • Initial accommodation analysis should focus on the employee’s current job. Accommodation is not about avoiding barriers (by transferring employee to another job) - It’s about dealing with barriers!
  • There are no hierarchies of different forms of accommodation. Therefore, family, religious, disability and other forms of accommodation should be assessed on a case-by-case basis.
  • Unions can be held liable for discriminatory collective agreement provisions and for blocking employer accommodation attempts.
September 18, 2013