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.

However, these other laws may not go far enough to meet the duty to accommodate under human rights legislation or may be in conflict with it. In those cases, the last word is always the human rights legislation, because the Supreme Court of Canada has held that all human rights legislation is quasi-constitutional (i.e. nearly constitutional).

Accessibility legislation

The Accessible Canada Act requires the federal government and federally-regulated industries to remove and prevent barriers to people with disabilities in a number of areas including built environments, employment, information and communication technologies, and service delivery, among others. This legislation applies to Parliament, federal government departments and agencies, crown corporations, the Canadian Forces and RCMP, and private businesses in federally-regulated sectors (telecommunications, interprovincial transportation, and banking). Organizations must develop accessibility plans to outline how they will become accessible, including making the workplace fully accessible and removing barriers to employment and participation at work.

So far, only three provinces have similar legislation that covers workers under provincial jurisdiction: Ontario, Manitoba, and Nova Scotia. British Columbia is also proposing an
accessibility law. Other provinces and territories may follow suit in the years to come

Collective agreements

Collective agreements must be interpreted and applied consistently with human rights legislation and case law. Courts have ruled that human rights laws are basically “read into” collective agreements. In other words, the provisions in human rights laws that relate to the workplace are considered part of the collective agreement.

Other laws covering the workplace

The Employment Equity Act, which covers the federal sector and certain federal contractors, states that employment equity plans must include positive policies and practices for the accommodation of those belonging to the designated groups.

Federal public service workers are also covered by the Public Service Employment Regulations (PSER). Section 7 of the Regulations sets out a time-limited priority for workers who develop disabilities in order to facilitate their reintegration and return to work. This is not limited to workplace injuries.

Other workers under federal jurisdiction are covered by the Canada Labour Code. The Code provides wage protection, workplace hazards, and return-to-work provisions for workers injured on the job.

As well, most provincial/territorial workers’ compensation acts include provisions on modified work, return to work and the worker’s re-employment rights.

There are different requirements that the employer must meet under these laws. It is important for a union representative to understand how these laws might apply in any individual case. Refer to the specific legislation that covers your workplace, check with your provincial/territorial workers’ compensation board, or speak with your component or PSAC regional office if you need assistance.

November 5, 2019