Policy, process and undue hardship: what you need to know about accommodation

Disability accommodation can often be as simple as small changes in routine or working conditions, but if your organization isn’t following the right procedure you could be heading towards a lawsuit.

What’s step one in a disability claim? Are all your managers following the same procedure? If you don’t know the answers to these questions your company could end up facing some serious charges.

Information gathering

When an employee first approaches HR or their manager about requiring accommodations it’s key to start gathering information, lawyer Marty Rabinovitch, from Devry Smith Frank, said. Find out what restrictions the employee has and the nature of the disability. While you can’t ask exactly what the diagnosis is, employers are entitled to enough information to find appropriate accommodation.

For example, in the case of a back injury, the employer is not entitled to know the specific diagnosis, such as a herniated disc, but would be entitled to know the employee has hurt his back and is unable to lift anything bigger than 50 grams.

“This information gathering stage is important so an employer can determine what sort of accommodation the employee really needs,” Rabinovitch said. “By getting this information and discussing it with an employee, hopefully the employer can offer accommodation the employee is happy with and the employment relationship can continue.”

In some cases the employer may want to ask the employee for permission to talk to their doctor to get specific details around the sort of tasks employees can and cannot complete.

Problem solving

One of the most common errors Rabinovitch sees is employers simply approving or rejecting an employee’s accommodation suggestions. The best employers take the time to consider all the accommodation options, instead of simply responding to other parties’ ideas.

“At the end of the day the employer is the one that has the obligation, once they learn of an employee’s disability, to take active steps to suggest or come up with accommodation,” Rabinovitch said. “They should be coming back with a proposal of their own, or if there really is no other proposal then explain why.”

The employee has a duty to cooperate with the accommodation process, and if an employer’s accommodation suggestion is reasonable the employee may have a responsibility to accept it.

How can you make sure you have a robust policy and comprehensive process? See page 2


Policy and process

If your company doesn’t have a policy in place it might be time to consult with a lawyer to develop one. Having a robust disability policy ensures a smoother, faster process, and means managers and employees know what to expect. Also, if things go badly and it ends up in court or in front of a Human Rights Tribunal, being able to show you followed a process will strengthen your company’s case

“Having a policy like this in place could also contribute to company morale because employees feel confident that if they got sick or needed restrictions the company would handle it appropriately,” Rabinovitch added. “And employees will knows steps they need to take such as who to tell and what information to have ready.”

It’s hardship, but is it undue?

An employer has the obligation to accommodate to the point of “undue hardship”, which prompts the question: What is undue hardship?

Courts in Canada have used “proportionality approach”, which requires an employer show there would be an excessive or disproportionately severe degree of harm caused to the company if they were required to implement that accommodation.

Things like an impact on financial losses or workplace morale can qualify, and it would apply for smaller companies sooner because accommodations requiring them to hire additional staff are more likely to affect their bottom line. A large company such as a national retail store or telecom company is going to have a more difficult time proving undue hardship.

Document document document

Like any HR issue, keeping good records is key. By recording all the accommodations that

“From the day the employee comes in with information about their disability the employer should document the accommodations that were offered and rejected, any discussion with doctors,” Rabinovitch said. “That’s how an employer can build their case if it does end up in court.”

Rabinovitch will be speaking at Devry's annual seminar on May 28 on the topic "WSIB Claims: An Overview and Tips for Employers".

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