Backcheck 2.0 Verifications
- About Us
December 18th, 2017 | Sterling
Employers must provide a safe, accommodating and legally compliant working environment for all employees, including those groups who most need protection. Canadian human rights laws help promote equality in the workplace and are an integral part of Canadian society. In Part 3 of Sterling Talent Solutions’ Employment Laws in HR series, “Workplace Accommodation”, Mark Sward, Director of Privacy at Sterling Talent Solutions, discusses what workplace accommodation is, when accommodation may cause undue hardship, the duties and responsibilities of employees, unions and employers for workplace accommodations and how the need for accommodation should be handled and documented.
A workplace accommodation is where an employer makes adjustments to the workplace for a person or group of people with unique requirements as a result of a characteristic protected under human rights law. Employers must accommodate those requirements to ensure the inclusion and dignity of everyone, despite protected differences, and bring diversity to the workplace. Workplace accommodation is determined on a case by case basis and may involve extra effort and expense that must be borne by employers.
Employers should look on a holistic level at their workplace to see if they can be proactive make their companies accommodating, even if they do not currently have employees who need those accommodations. Other accommodation considerations for employers and unions are:
Workplace accommodations must be made to the point of undue hardship on the part of the employer. Employers can claim that an accommodation causes undue hardship based on evidence of actual cost, taking into account the employer’s ability to pay, and the health and safety impact. Hypothetical hardship, inconvenience, minor expense, employee morale, collective agreements or personal preferences should not usually be barriers to accommodation. Costs that are used to claim undue hardship must be quantifiable, related to the accommodation and so substantial that they would alter the essential nature of the business or affect its viability.
Employees, employers and unions all have responsibilities and duties for workplace accommodation. Employees need to be able to request an accommodation under protected grounds. They need to be able to explain their need, answer questions and provide information to their employer in a concise manner. Once the accommodation is in place, the employee must cooperate with their employers to manage and work with the accommodation and notify their employer when the accommodation need is no longer required.
If the employee is a union member, the union should take an active role as a partner in the accommodation process. The union will share responsibility with the employer to facilitate accommodation while supporting the measures despite collective agreements, to the point of undue hardship.
Employers should accept the request for accommodations in good faith, with confidentiality and respect the dignity of the employee. They need to remove barriers and discriminatory practices or policies whenever possible. Employers are required to investigate possible accommodations, work with the employee and be creative to arrive at the best solution. They need to grant the accommodation request in a timely way, to the point of undue hardship. Employers need to implement accommodations as agreed and adjust them if necessary. If the employer does believe that the accommodation will cause undue hardship, the employer should explain and demonstrate this to the employee.
To better understand workplace accommodation, Mark Sward shared some practical, real-life examples relating to modified physical condition, job duties and scheduling:
Employers must keep records of workplace accommodation requests and action taken. An actual “Accommodation Policy” may not be required by law but may be useful to ensure the correct steps are followed. Employers should keep a written record of all accommodation requests and supporting documentation, notes from meetings, all accommodation options explored and the analysis to determine which (if any) are feasible and any follow-ups on effectiveness and any changes to the accommodations. Due to the heightened sensitivity, it may be preferable to store workplace accommodation documentation separately from of personnel files. Records should be kept as long as needed to provide and maintain accommodation and respond to any potential human rights complaints or lawsuit. It is important to check local human rights and labour legislation for specific document retention requirements.
To learn more about accommodation and how it affects the workplace, listen to the OnDemand version of the very informative webinar. You can also listen to the earlier webinars in the Employment Law and HR series: “What is Bona Fide Requirement?” and “What is Unintentional Discrimination?”
Please note:Sterling Talent Solutions is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.