Is the employer the only one who has a duty to accommodate workers in the workplace?

 

The duty to accommodate rests on the employer because it has ultimate control over the workplace. It must investigate all possible accommodations, and consult the union and employee. But while the employer has the main responsibility to accommodate workers, the Union also has a duty to accommodate. Employees needing accommodation have responsibilities as well.

Non-discrimination and/or duty to accommodate clauses are found in almost all collective agreements. As a result, a worker’s right to be accommodated is a collective agreement right.

The Union must:

  • Ensure that it does not negotiate provisions in a collective agreement that have a discriminatory impact

  • Work with the employer to proactively eliminate any discrimination that does result from provisions in a collective agreement

  • 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.

Workers must:

  • Indicate their need for accommodation when it arises

  • cooperate and facilitate the accommodation process, including providing information that will assist in determining what accommodation is required and, if possible, identifying appropriate accommodations.

  • accept “reasonable” accommodation, even if it is not ideally what the worker wanted. If the worker refuses to accept a proposed accommodation then she or he should provide a reasonable explanation for this refusal.

However, while an employee has an obligation to cooperate, she or he is not required to accept a proposed accommodation that is unreasonable (i.e. an accommodation proposal that threatens the employee’s general health and well-being).

September 18, 2013
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