Duty to accommodate: A PSAC guide for local representatives

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The Public Service Alliance of Canada is committed to ensuring that workplaces are equitable and fair. As our communities and workplaces continue to become more diverse, human rights remain essential in providing inclusive representation to our membership. In order to address diversity and inclusion, we must remove the barriers that prevent historically excluded and disadvantaged groups from fully participating in their workplaces and communities.

This Guide is set up as a question and answer document. If you have questions that are not answered in this document, contact your Local or Component for further information.

 

 

What is the duty to accommodate?

The duty to accommodate is the duty of employers to make sure that their workplaces are inclusive and allow all workers to participate fully. This duty relates to the grounds of discrimination in human rights laws.

What does this mean?

The employer must design policies, procedures, requirements, standards and practices so that they do not create barriers to employees’ participation based on human rights grounds. The employer must adapt the workplace (physical work space or equipment, or workplace rules, practices etc) to ensure that individual workers can fully participate.

Examples:

  • designing physical spaces with accessibility in mind for people with different physical abilities and limitations
  • ensuring policies on absences from work are inclusive and flexible enough to adapt to different family obligations or religious requirements
  • providing an adapted workstation if a worker has disability-related ergonomic needs
  • allowing a gradual return to work that involves flexible hours for a specified period of time after an employee’s long-term medical absence

 

 

    Who has the right to be accommodated?

    The duty to accommodate is usually thought of in terms of disability, but it relates to a broad range of individual differences among workers. Any needs that are related to the grounds of discrimination under human rights laws are covered by the duty to accommodate.

    The following prohibited grounds of discrimination exist in most human rights laws* in Canada:

    • race or colour
    • age
    • national or ethnic origin
    • sex
    • religion or creed
    • sexual orientation
    • gender identity and/or gender expression (either specifically covered or indirectly covered under another ground)
    • marital status
    • family status
    • disability (visible and non-visible disabilities including physical, cognitive, psychological, sensory and learning, episodic and substance use disorders)
    • genetic characteristics
    • a conviction for which a pardon has been granted or a record suspended
    *NOTE: The grounds of discrimination vary among federal, provincial and territorial human rights laws, therefore check the legislation that applies to your workplace. In addition, under the Employment Equity Act, employers under federal jurisdiction are also required to be proactive in identifying and eliminating employment barriers against persons in four designated groups: women, racialized people, people with disabilities and Indigenous Peoples. For more information, see PSAC Employment Equity.
    Is the employer the only one who has a duty to accommodate workers in the workplace?

    The duty to accommodate largely rests on the employer because it has ultimate control over the workplace and sets the policies, practices, standards, etc.

    In individual cases of accommodation, the employer must investigate all possible accommodations and consult the union and employee.

    The duty of the union

    While the employer has the primary duty to accommodate workers, the union also has a positive duty to accommodate and must not block or prevent the accommodation of a worker.

    “Non-discrimination” or “duty to accommodate” clauses are found in most collective agreements. As a result, a worker’s right to be accommodated is a collective agreement right. The actions of a union are also covered by human rights legislation.

    Where a union has negotiated an arrangement or a collective agreement provision that has a discriminatory impact, it has a joint responsibility with the employer to proactively eliminate that discrimination. Even if the union was not involved in negotiating or implementing a discriminatory provision, it must cooperate with the efforts of the employer to accommodate workers.

    If the employer does not take its responsibility seriously, the union should insist that the employer take the necessary action.

    In most cases, the union should support accommodation measures because collective agreement provisions can and should be interpreted and applied in a way that avoids a discriminatory impact. However, the union does not have to support an employer’s accommodation measures if it can demonstrate that there is a substantial interference of collective agreement rights to the point of undue hardship.

    The duty of the worker

    Workers have an obligation to cooperate and assist in the accommodation process, including providing information (e.g. medical documentation) that will help determine what accommodation is required and, if possible, identifying appropriate accommodation. The worker must accept “reasonable” accommodation, even if it is not ideally what the worker wanted. If the worker refuses to accept a proposed accommodation, then they must provide a reasonable explanation for the refusal.
    However, while an employee must cooperate, they are not required to accept a proposed accommodation that is unreasonable (i.e. an accommodation proposal that threatens the employee’s general health or well-being).

    What is the legal right to accommodation?

    The right to accommodation comes from various laws that apply to the workplace.

    Human rights acts and codes

    PSAC members who work in the federal jurisdiction (federal public service and separate agencies, crown corporations, transportation sector, etc.) fall under the Canadian Human Rights Act. This legislation includes a specific requirement of employers to accommodate individual workers up to the point of undue hardship (section 15(2)).

    With the precedent-setting Meiorin Supreme Court of Canada decision in 1999, the duty is broadened to include the employer’s obligation to proactively eliminate discrimination in its policies and practices.

    Provincial and territorial human rights acts or codes vary in their accommodation provisions. However, the Meiorin decision applies to all human rights legislation in Canada.

    Other laws that provide accommodation rights

    Other laws, such as provincial or territorial workers’ compensation acts, labour legislation, and the federal Public Service Employment Act, address the duty to accommodate employees with disabilities under certain circumstances.

    See more: Legal right to accommodation

    When does the duty to accommodate a worker arise?

    As the Meiorin case set out, employers must design workplaces so that equality and accommodation are built in to all policies and practices.

    In practical terms, the worker must advise the employer of any accommodations they need to return to work or participate fully at work. Note: the situation may be different if there is a mental health disability or substance use disorder involved. See What are the responsibilities of the worker being accommodated?

    Once a worker identifies a need for accommodation related to a prohibited ground (such as disability, religion, family status, gender identity, etc.) then the duty is on the employer to make every reasonable effort to accommodate the worker. In other words, the worker must show that they have a disability, a religious practice or family responsibilities, etc. that requires accommodation. Without the accommodation, there are barriers for the worker who is unable to fully participate and/or to have access to benefits and opportunities that others have in the workplace. The employer must remove the barriers through accommodation of the worker.

    What is a bona fide occupational requirement (BFOR)?

    Most human rights legislation and case law refer to this term, which creates an exception to the employer’s duty to accommodate. In other words, an employer must accommodate unless they can establish that the job requirement is a bona fide occupational requirement (BFOR).

    A BFOR refers to the essential tasks required to perform a job. Where an employer can establish a particular BFOR, they can exclude certain workers, under certain circumstances, from a job.

    See more: Bone fide occupational requirement

    How do we identify the essential elements or duties of a job?

    It is important in identifying BFORs to differentiate between tasks or skills that appear to be essential, or are employer preferences, as opposed to those that are essential. While it’s not always possible for someone to perform certain tasks in non-traditional ways, it is important to clearly define what the actual task is so that the appropriate accommodation can be identified.

    See Examples

    What is undue hardship?

    Employers must accommodate workers up to the point of undue hardship. The undue hardship threshold is high.

    Decisions by courts and tribunals in human rights cases have ruled that undue hardship meansexcessive and substantial disruption or interference with the employer’s operation such that they would alter the essential nature of the organization or significantly affect its viability.

    Undue hardship does not mean minor inconvenience or interference. Basically, accommodation measures must be taken unless it is impossible to do so without creating undue hardship.

    Two major issues have been identified as important in defining undue hardship:

    • If the financial costs associated with the accommodation would be so high that they would change the essential nature of the organization or threaten its ability to operate. Note, however, that outside sources of funding should be considered.
    • If health and safety considerations are not met. Public safety and the health and safety of co-workers must be considered. However, when safety standards are developed or applied, employers must accept that some moderate level of risk might be necessary in order to ensure the success of the accommodation.

    Other related factors may be considered depending on case law and the particular jurisdiction. It is important to be aware of the specific definition given to undue hardship in the legislation that applies to your workplace and to hold the employer to that definition, rather than allowing additional factors to be considered.

    The point of undue hardship will also vary depending on the size of the employer’s operation, but the burden must be significant. Subjective belief, speculation or impressions about increased expenses or future costs are not sufficient to prove undue hardship. Evidence must be provided based on objective facts (e.g. financial statements and budgets, scientific data, expert opinion, detailed information about the activity and requested accommodation, etc.).

    As well, in determining undue hardship, an important question is “who is the employer”. For example, an employer may insist that the department in which the accommodation is required cannot afford the cost of the accommodation. This may be the case, but it is the true employer (i.e., the whole organization) that is responsible for the accommodations and the question is whether it would be an undue hardship on this larger body. Departments in the federal public service often rely on this argument, but the fact is that the Treasury Board is the employer and has substantial resources.

    The determination of undue hardship is a fluid and complex area. Refer to the specific legislation that covers your workplace, or speak with your component or your PSAC regional office, if you need assistance.

    Who is responsible for proving undue hardship?

    Once the worker has shown that they have accommodation needs related to a prohibited ground under human rights legislation (i.e. disability, religion, family status, etc.), the employer must prove that it is unable to accommodate due to undue hardship.

    What are the responsibilities of the employer in accommodating a worker?
    • to proactively “build conceptions of equality into workplace standards”
    • to design workplace requirements and standards so that they do not discriminate
    • to identify and remove any workplace discrimination and barriers found in its policies, practices, standards and procedure. For example, workplace standards, such as lifting requirements or work schedules that unintentionally discriminate against employees on a protected human rights ground (i.e., disability, gender, religion, etc.) should be modified or eliminated
    • to ensure that equitable access is provided to employees and potential employees to enjoy the benefits, opportunities and privileges that other employees do
    • to ensure that discrimination is not allowed on the part of both employer and co-workers
    • to inform employees and applicants of their right to accommodation and its duty to accommodate policy and procedures
    • to ensure all managers and supervisors are aware, understand and abide by their obligations to accommodate
    • to be creative and flexible
    • to demonstrate a willingness and commitment to accommodate
    • to identify the need for medical information, assessment and accommodation if not possible by the worker themselves
    • to review, follow-up and assess accommodation of workers on an on-going basis
    • to maintain confidentiality and respect privacy and dignity of the workers who are being accommodated
    • to respect the collective agreement in terms of accommodation
    • to address the issue with the worker and the union
    • to consult and seek information concerning their workers’ disability-related employment needs from workers, union representatives and medical and accommodation specialists
    • to consult and work with the union and the workers to eliminate discrimination and provide education on the duty to accommodate.

    As well, employers have related responsibilities that will affect the success of accommodation initiatives, specifically:

    • to provide a workplace free from harassment
    • to abide by the return to work processes under labour codes, workers’ compensation, disability insurance and other related legislation
    • for employers falling under federal jurisdiction, to comply with the Employment Equity Act and Regulations, which includes the requirement to consult and collaborate with unions in order to achieve equality in the workplace
    What are the responsibilities of the worker being accommodated?

    The worker requiring accommodation has the following responsibilities:

    • to identify and communicate the need for accommodation, if possible*
    • to inform the employer of any changes to the accommodation needs
    • to collaborate with the employer to find the most appropriate accommodation, if possible. This can be done with the assistance of a union representative.
    • to communicate with the employer and with their union representative, if applicable
    • to accept reasonable offers of accommodation. Note: the employee is not entitled to insist on their ideal or perfect accommodation; if the employer’s proposal is a reasonable accommodation then the employer has met its duty.
    • to offer a reasonable explanation for refusal to accept a proposed accommodation to supply job-relevant medical information in cases relating to disability (non-diagnostic in formation only, such as the functional limitations and capabilities, e.g, “the worker can lift between 1 and 25 lb.”)
    • to supply other information that may be necessary to demonstrate the need for accommodation (e.g. in cases of family status)

    While the worker has a requirement to be cooperative and assist in identifying and implementing an appropriate accommodation, they only need to provide  information relevant to the accommodation. There is no legal requirement to reveal a medical diagnosis and, in some cases, the worker may wish to keep the diagnosis private due to current social stigmas around their particular illness or condition. See What medical information is required during an accommodation process?

    *It is important to note that in some cases, the disability itself can prevent a worker from asking for accommodation. For example, a mental health disability or substance use disorder may lead the employee to deny or not understand that they in fact have a disability. This does not let the employer off the hook. There is a duty of employers, and unions in certain circumstances, to ask questions and offer assistance to the employee if a disability is suspected, or ought to have reasonably been suspected.
    What are the responsibilities of the union as a worker representative?

    The responsibilities of the union representative include the following:

    • to insist that the employer fulfills its proactive duty to design workplace requirements and standards so that, from the outset, they do not discriminate
    • to model a problem-solving approach to accommodation (be proactive in putting forward possible accommodations – available positions, modifications, etc.)
    • to assist and represent a member requiring accommodation throughout the accommodation process
    • to collaborate with the member and the employer in accommodating the worker
    • to respond to employer accommodation proposals
    • to follow-up after the accommodation is implemented to assess whether it is working and to help address any associated issues that may surface
    • to ensure that the collective agreement does not discriminate during the collective bargaining process and during the life of the collective agreement
    • to inquire with a member who is having difficulty at work or has been disciplined as to whether any accommodations are needed (where a disability or other ground of discrimination appears to be a factor)
    • to educate other employees in the workplace about the duty to accommodate, especially if there is a lack of understanding on this issue

    As well, the union may play a role in the following ways:

    • providing and ensuring the employer provides education about equity issues and the duty to accommodate
    • providing its own educational courses on human rights and the duty to accommodate
    • seeking to ensure that the worker’s rights (human rights) are respected
    • balancing the need of the individual worker for accommodation and the interests of the bargaining unit members as a whole
    • complying with the consultation and collaboration provisions under the Employment Equity Act
    • seeking to ensure the health and safety of co-workers is not compromised and involving health and safety officials as required
    Who else needs to be involved in workplace accommodation?

    Co-workers need to be involved to the point that they understand what the duty to accommodate is and why it is valuable for the whole workplace. It is not helpful if other workers feel that a co-worker is receiving “special treatment”. The duty to accommodate must be approached in a problem-solving mode, involving everyone who will be affected, at least through education. It is important to remember that others may not be entitled to know about specific workers’ disabilities due to confidentiality and privacy issues.

    In some cases, it may be appropriate to involve a union health and safety representative in accommodation cases to ensure that health and safety protocols are being respected (e.g. air quality in ventilation systems, ergonomic assessments, work process or workplace redesign, etc.). As well, accommodation may involve medical and other professionals to assess the workplace, the job in question or the worker requiring accommodation.

    What would be an ideal process for the accommodation of a worker in the workplace

    Systemic approach

    At the outset, the employer should design all standards, requirements, procedures and policies to ensure that they are not discriminatory. Flexibility and a willingness to accommodate individual needs must be built in to all workplace standards and practices. When a barrier or discriminatory standard arises or is recognized, the employer should first review the standard against the requirements for a BFOR and make changes, if possible, to eliminate the barrier. If the employer is not able to address the matter with a systemic approach, it may become a situation of accommodating the needs of one or more individual workers.

    Individual cases of accommodation

    Although each case is different and must be approached with flexibility, there are some basic steps to follow in accommodation cases.

    For a specific outline of the steps involved in a typical accommodation process, see Appendix B and Appendix H.

    A key element to the success of an accommodation is the ongoing involvement of the worker being accommodated, and ideally their union. Especially in cases of disability, there is sometimes a tendency to decide what is best for the worker without their involvement, when, in fact, they know their own situation better than anyone else. It is not helpful for the employer and union to try to accommodate a worker between the two of them. Where decisions are made without the permission or knowledge of a worker, it can result in that worker feeling excluded from a process that will affect them on a daily basis. It might also prevent other members from stepping forward for fear they will begin a process over which they have no control.

    Also, accommodations must be made on a case-by-case basis. There is no one-size-fits-allsolution and the parties must remain flexible and open to the possibility that the employee’s needs will change over time and thus, their accommodation might have to be adapted. There are no set rules when assessing accommodation measures. However, the objective is to have little or no negative impact (i.e. financial, classification, relocation, etc.) on the worker requiring accommodation.

    The following is a guideline when considering how and what can be proposed as accommodation measures:

    • Can the worker perform their existing job as it is (i.e. same classification, location and wages)?
    • If not, can they perform their job with modifications, physical changes or “re-bundled” duties?
    • If not, can they perform another job in its existing form (i.e. same classification, location and wages)?
    • If not, can they perform another job with modifications, physical changes or “re-bundled” duties? (This may involve re-training).

    When assessing accommodation measures, the employer should examine its entire organization. For example, if no accommodation measures are available within the work site/department, then accommodation measures outside of the work site/department should be considered.

    What medical information is required during an accommodation process?

    In many situations involving disability, the employer may request medical information to assess what suitable accommodation measures are required. In other situations, medical information is unnecessary since the accommodation may be obvious. In cases where medical information is necessary to support a request for accommodation, medical information that must be provided should only consist of what is necessary to assess accommodation in the workplace, i.e. limitations and restrictions. The worker only has to disclose medical information that is relevant to the disability being accommodated and does not have to provide access to their entire medical file. Diagnosis is not required in virtually all cases.

    The first source (and the best source) of medical information is the worker’s own treating medical practitioner. Where the employer needs medical information in order to accommodate an employee, the employee should submit a medical certificate from their medical practitioner. An employer may request more information if there is some issue or problem with the medical information (e.g. insufficient information, ambiguities or contradictions in the information provided, or the need for a more specialized assessment). Further clarification should be sought from the worker’s medical practitioner. If a specialist is needed, the employee can go to a specialist of their choosing. In some cases, an independent medical exam may be reasonable. An independent medical exam is one where all parties agree on a medical practitioner.

    Although in some cases, an independent assessment may be required (e.g. unable to get answers from the worker’s medical practitioner), an employer cannot insist or automatically require that a worker go to the employer’s own medical assessor (e.g. Health Canada) for a medical assessment, unless there is specific language in the collective agreement. Human rights case law is clear that an employer cannot discipline a worker who refuses to submit to an employer’s own medical assessor.
    However, a refusal to provide medical information or to go for a medical assessment may result in some negative consequences (e.g. remaining on leave without pay, not being accommodated back into the workplace, termination, etc.), so it may be necessary to comply while filing a grievance.

    Some employers have policies that outline the requirement for medical assessment processes (e.g. the Occupational Health Evaluation Standard is applicable to federal public service workers under Treasury Board). However, these policies should be consistent with the requirements under human rights and privacy legislation and case law.

    At any time during the accommodation process, a union representative can be contacted for assistance.

    Can I file a grievance if accommodation is not provided? What other recourses are there?

    For many members, a grievance is a possibility and may be based on specific or general “No Discrimination” language in the collective agreement.

    Sample grievance wording:

    I grieve that the employer has failed to accommodate me in the workplace and therefore
    has discriminated against me on the basis of ____
    (applicable ground such as disability,
    family status, etc.), contrary to Article __ No Discrimination, _____ (other relevant articles
    of the collective agreement) and contrary to the _____ (Canadian Human Rights Act or
    applicable provincial/territorial human rights legislation).
    Remedy requested: For the employer to provide me with the needed accommodation
    immediately, in accordance with ____
    (“my physician’s recommendations” or other
    relevant information of the grievor), and full redress for any losses, including ___ (e.g.
    reimbursement for lost salary and benefits, restoration of sick leave credits, etc.), pain
    and suffering, and any other appropriate remedy in order to make me whole.

    At the same time, while the workers’ rights are protected by filing a grievance, it is often productive to enter into a problem-solving mode with the employer and the union on a “without prejudice” basis. The union should initiate discussions with the employer through this more informal route, if possible.

    Note that there are time limits to file grievances. Although accommodation issues are often ongoing, grievances generally need to be filed within the time period defined by the collective agreement. If they are not filed in time, there is no guarantee that the grievance will be accepted by the employer. Also, an untimely grievance could limit the scope of time covered in the grievance and the scope of any remedy.

    If you are in doubt about whether there is a valid human rights grievance, then you should still file it to protect time limits and ensure that you cover appropriate remedies (i.e. “at least make whole”, “pain and suffering”, etc.). Keep in mind, “if you feel it, file it”. You may also want to speak to your component or PSAC regional office.

    It is often beneficial to file both grievances and human rights complaints at the same time. A human rights complaint is to the human rights commission under the human rights legislation that covers your workplace, on the basis of discrimination on a prohibited ground. There are also time limits to file human rights complaints, so you should contact the human rights commission at the same time you are filing your grievance, in order to ensure that you meet both time limits.

    Complaints may also be made under workers’ compensation legislation. If a formal process is required to encourage the employer to reasonably accommodate a worker, contact your component or PSAC regional office for assistance in determining the best route.

    What is the “dignity of risk”?

    The dignity of risk refers to the right of an individual to assume a higher risk to themselves than might normally be considered acceptable in a workplace. Where possible, the individual should be allowed to assume risk with dignity, subject to the undue hardship standard. The risk created by modifying or waiving the health and safety requirement must be weighed against the right to equality of the individual. For example, a person may decide not to wear a hard hat due to individual religious requirements. The higher risk is to that specific individual and not others.

    This concept applies only if it does not cause serious safety risks to co-workers or the general public. If there is a risk to public safety, then consideration should be given to the increased numbers of people possibly affected and the likelihood that a harmful incident may happen. Types of risk legally tolerated at the workplace or within society as a whole will be considered. In some cases, higher risk might result in increased liability for the employer and higher costs. In these cases, the ability to assume risk would be limited.

    In what way does the duty to accommodate apply to PSAC members receiving disability insurance benefits?

    The incidence of disability insurance claims has increased significantly, and most of these claimants will eventually return to the workplace in some capacity. The majority of disability insurance policies that apply to PSAC members contain contractual provisions for rehabilitation assistance. However, the basic principles of the duty to accommodate, as discussed in this publication, certainly apply in these types of situations and can facilitate a successful reintegration back into the workplace.

    What are the steps a member can take to return to work after being away from the workplace for a prolonged period of time while receiving disability benefits?

    When an employee has been away while receiving disability benefits, PSAC recommends a gradual return to work. You should work with your local representative, attending physician and the insurer (e.g. Sunlife or Industrial Alliance) to develop an appropriate graduated return to work plan. For example, if the employee worked five days per week, a graduated work plan could have the employee return to work three days perweek while the insurer will pay for the remaining two days. This work plan must be agreed to by all parties involved (employee, employer, attending physician and insurer).

    What do I need to know about return to work programs?

    Return to work programs are meant to facilitate an injured or ill worker’s return to their pre-leave employment, with an appropriate transition period, when the worker is ready to return to work.

    The goal of a return to work process should be to ensure that tasks and duties assigned to the worker are meaningful and productive and have value for the worker and employer. The return to work should have a rehabilitative focus.

    See more: Return to work programs

    How does accommodation relate to health and safety in the workplace?

    In providing accommodation to an individual, the employer should not create any additional hazards to that individual or to other workers. However, the employer must accommodate to the point of undue hardship. Inconvenience to the employer and other employees does not, in itself, constitute undue hardship. If the disability resulted from a workplace injury or illness, the worker must report the incident or near miss to the employer and may need to access worker’s compensation. If the employer agrees that a danger exists, the employer should take immediate action to protect employees from danger. As well, the employer must notify the workplace health and safety committee, so they can take steps to ensure that the hazard is eliminated and does not injure other workers. If you need assistance, consult your component or regional health and safety representative.

    When an accommodation case relates to a workplace injury or exposure, what can my employer know about my underlying medical condition(s) and how can I prevent other people from needing accommodation from injury or exposure to the same hazard?

    Under no circumstance does the employer have any right to know your underlying medical condition. The employer can only know what you can do and what you cannot do (e.g. limitations and restrictions). If you think there is an underlying health and safety issue, then address it separately from your accommodation. Speak to your local health and safety representative, or local union representative.

    What other resources are available to assist me in understanding the duty to accommodate?
    • Aside from this booklet, you may contact your component or PSAC regional office for further information.
    • You should examine the relevant legislation and your collective agreement.
    • Ask your employer for a copy of their accommodation policy(ies).
    • Ask your employer for a copy of their employment equity policy (if applicable). Employers subject to the Employment Equity Act should have consulted and collaborated with union representatives on the development and the implementation of such a policy.
    • PSAC offers basic and advanced courses on the duty to accommodate. Check with your regional office to find out about courses offered or visit psacunion.ca/education.
    • The Joint Learning Program, which covers workers in the federal public service, offers a work shop on the duty to accommodate.
    Tools, tips and forms

    Appendix A: Accommodation: Cautionary tips

    Appendix B: Steps in the accommodation process

    Appendix C: Accommodation on the basis of disability: Checklist for union representatives

    Appendix D: Dos and don’ts for assisting members with mental health disabilities

    Appendix E: Sample release of information form

    Appendix F: Sample medical ability to work form

    Appendix G: Important cases dealing with accommodation

    Appendix H: Disability accommodation process

     

    September 26, 2019