What gives us a legal right to accommodation?

  1. The human rights legislation that applies to your workplace

The right to reasonable accommodation stems from the various pieces of legislation that apply to the workplace in question.

For example, PSAC members who work in the federal jurisdiction (federal public service and federally regulated employers such as crown corporations, airports, etc.) fall under the Canadian Human Rights Act. This legislation includes a specific requirement for employers to reasonably accommodate individual workers up to the point of undue hardship (section 15(2)).

Workers that are under provincial/territorial jurisdiction (e.g. universities) are covered under their provincial and territorial human rights acts or codes. These laws vary in their accommodation provisions. However, the principles of the Meiorin decision apply to all human rights legislation in Canada.

The Supreme Court of Canada has held that all human rights legislation is quasi-constitutional (i.e., nearly constitutional) because it expresses fundamental Canadian values and important public policies. Therefore, if there is a conflict between other legislation and human rights legislation, the Human Rights Act is paramount (i.e. “trumps” the ordinary legislation). In light of this, Acts, such as Workers’ Compensation Acts or the re-employment provisions of the Public Service Employment Act, which address the duty to accommodate employees with disabilities, may not go far enough to fulfill the accommodation requirements of human rights legislation. The last word is always the human rights legislation.

  1. The Canadian Charter of Rights and Freedoms

It should be noted that all human rights legislation must be consistent with the Canadian Charter of Rights and Freedoms, which is part of the Canadian Constitution (1982). Under the Charter, section 15, the equality provision, is the minimum standard for all human rights legislation in Canada.

  1. Labour legislation and case law

Labour legislation and case law in Canada provide that collective agreements must be interpreted and applied consistently with human rights laws and jurisprudence. Specific language in collective agreements may vary but, in essence, all unionized workers are protected from discrimination and harassment based on a prohibited ground under their collective agreements.

  1. Employment Equity Act (federally regulated workers only)

The Employment Equity Act states that employment equity plans must include positive policies and practices for the accommodation of those belonging to the four designated groups.

  1. Other laws

Most provincial/territorial workers’ compensation acts include provisions on modified work, return to work and the worker’s re-employment rights. Since this legislation varies from one province to another, you should check with your respective provincial/territorial Workers’ Compensation Board.

Federal public service workers have similar coverage under the Public Service Employment Regulations (PSER). The provisions found in section 7 of the Regulations establish a time-limited priority for workers who develop disabilities in order to facilitate their reintegration and return to work . The entitlement is only available to persons who are indeterminate employees when they develop a disability. The type of disability is irrelevant and it does not matter whether the disability was incurred at the work place or away from the work place, or whether the employee became disabled while on duty.

Additional coverage for federally-regulated workplaces is also found in the Canada Labour Code, Part III, Division XIII.1. It provides wage protection and return-to-work provisions for workers injured on the job.

Note that legislation comes under review regularly and, thus, may be changed.

September 18, 2013