Justin W. Anisman is an Employment Lawyer and principal of Anisman Law. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.
Making a request for accommodation because of a medical disability often feels intimidating. If circumstances arise that impact your ability to do your job, what do you do?
Sometimes disabilities arise and make it difficult to complete daily work duties. There are many varying types and degrees of disability that present as either physical, mental or other challenges and barriers.
This article outlines the general obligations of your employer to “accommodate” you and provide the steps to take when requesting a workplace accommodation.
What is a workplace accommodation?
As an employee, you are entitled to adjustments to the workplace to allow you to continue to do your job within various limitations. This is referred to as a “workplace accommodation”. Your employer is obliged under law to make efforts to help you do your job.
Accommodations can take the form of changes to the physical environment or changes to help you adapt to certain new equipment or tools. Accommodations might also be simple. More flexible work hours, job sharing or even the option to work from home. Sometimes employers can adjust the amount of repetitive tasks you are required to do in a period of time, or provide extra time off for attendance at medical appointments.
Accommodations can be temporary, periodic or long term depending on the medical condition.
How do you make a request for workplace accommodation?
The accommodation process is an ongoing conversation between you and your employer. It involves the following stages:
- Recognition of the need for an accommodation
- Meeting to discuss the request for accommodation
- Gathering and reviewing relevant information pertaining to the accommodation request and assessment of that request
- Making informed decision regarding the accommodation request
- Implementation and communication of the decision
- Follow-up and maintenance of records for the accommodation
Requests for accommodation should be:
- Specific and reasonable
- Due to a barrier or limitation – which is clearly explained
- Include suggestions on what accommodations might help to deal with the issue
As part of this process, your employer has the right to request medical information from you to support the request for a workplace accommodation. This might include asking for documentation from your treating physician. In some cases, depending on the extent of the accommodation request, a medical exam by an independent third-party medical practitioner may be requested.
During the request period, it is recommended that you and your employer stay open to considering potential options. Be flexible to find a solution. When seeking accommodation, you should cooperate with your employer. They need a chance to gather information, explore alternatives and develop the accommodation plan with you.
Participate in discussions about possible accommodation solutions. Cooperate with medical professionals. Experiment with different forms of accommodation. No solution will be perfect at first, and you should not be afraid to adjust the accommodations to suit your needs. This is all part of the process.
If you are an employee in a union, it is a good idea to contact your union representative.
How will my employer react?
Once a request is made, your employer is required to accept it in good faith unless there is some legitimate reason for not accepting it.
In some cases, your employer may feel the need to seek expert opinion or advice. And they are required to maintain confidentiality about the request. Your employer should take an active role in exploring ranges of options available.
Record your accommodation requests and actions taken. There is an expectation that requests for accommodation be granted in timely manners and that employers cover any costs for medical information or documentation that they request.
Can a request for accommodation be denied?
There are limits on how far your employer has to go to accommodate your need/request for accommodation.
Employers are only required to provide accommodation up to the point of “undue hardship“. In order to prove undue hardship, you employer needs to prove that they explored all possible options but that the requested accommodation poses an undue risk to the health and safety of the company’s employees or that the related cost would greatly impact the viability of the company.
A second way an accommodation can be denied is for the reason that the accommodation impacts a bona fide work requirement. For example, if you work in a manufacturing plant using specialized equipment, any request to work from home would be refused, as it is a bona fide work requirement to be physically present to work with that equipment.
Undue Hardship in Accommodation
The problem is that there is no set formula for determining what constitutes undue hardship and the courts have cautioned that the term “undue” does not mean “any” hardship. The hardship must be significantly difficult to warrant not accepting the accommodation. Sufficient evidence is mandatory to assess claims for undue hardship.
According to the Ontario Human Rights Commission:
To claim the undue hardship defence, the organization responsible for making the accommodation has the onus of proof. It is not up to the person with a disability to prove that the accommodation can be accomplished without undue hardship.
The nature of the evidence required to prove undue hardship must be objective, real, direct and, in the case of cost, quantifiable. The organization responsible for accommodation must provide facts, figures and scientific data or opinion to support a claim that the proposed accommodation in fact causes undue hardship. A mere statement, without supporting evidence, that the cost or risk is “too high” based on impressionistic views or stereotypes will not be sufficient.
Objective evidence includes, but is not limited to:
- Financial statements and budgets
- Scientific data, information and data resulting from empirical studies
- Expert opinion
- Detailed information about the activity and the requested accommodation
- Information about the conditions surrounding the activity and their effects on the person or group with a disability
What happens if my employer refuses to reasonably accommodate my disability?
If your employer refuses a legitimate request for accommodation up to the point of undue hardship, then they might be discriminating against you on the basis of medical disability contrary to the Ontario Human Rights Code.
You can bring a complaint to the Ontario Human Rights Tribunal to force them to accommodate you. You may also be able to claim constructive dismissal. For more information see my article: Constructive Dismissal: A Good Reason to Quit.
Ensuring Success of a Request for Accommodation
The success of a accommodation request depends on establishing a balance of employee rights and the rights of your employer to operate a productive workplace.
Cooperation and taking an open-minded approach to the accommodation options and planning by both you and your employer will promote a positive approach to finding the best solution for both sides.
Your employer must consider all ways short of undue hardship to meet their duty to accommodate under the Human Rights Code. This can be evidenced, for example, in efforts to make reasonable changes to business practices or obtaining grants or other subsidies to offset the expense of the accommodation as required.
In the end, a positive, safe, healthy and productive workplace is a priority for all and when a disability arises, the Human Rights Code offers the protection you need to maintain your valued and respected role within that company.