The Duty to Accommodate
The duty to accommodate can take many forms and relate to a variety of protected grounds that may require some type of modification to a work arrangement.
The duty to accommodate (DTA) may also relate to a variety of different aspects of legislation. Human Rights, Employment Standards, Accessibility Regulations and Workplace Health and Safety are some of the most common.
As employers, there are a number of obligations to consider when assessing a DTA, but remember there are obligations on behalf of the employee too.
DTA can be triggered by a variety of situations, some frequent ones include:
A work refusal
A change in shift or request for a change
Health concerns, including injuries
Change in performance, attendance or behaviour
Remember that although an employee is required to inform an employer of a need for an accommodation, the employer also has an obligation where they "ought to have reasonably known", so don't wait for specific words to come from an employee to start the conversation where a potential accommodation may exist.
This is an issue that should also be kept top of mind when discussing potential returns to the workplace post-COVID or after a claim related absence.
There are some key reference points and steps to ensure you follow when dealing with an employee where you may have a duty to accommodate. Here are a few things to keep in mind:
Each situation is unique, context matters and there is no one size fits all solution or approach.
Although you have a duty to provide an accommodation where required (up to undue hardship), an employee also has a duty to follow lawful instruction such as providing relevant information and attending to work.
Where the accommodation may revolve around not attending to the workplace, you need to ensure you have all the details- ask the question, "What is your basis for not returning?"
Where the accommodation is around a situation that involves third party participation such as medical, family status or other outside influences, ensure that you are gathering the needed supporting documentation AND that you are not requesting information that you may not be entitled to (such as an actual diagnosis). The information should be provided to you via the employee and not through an additional party such as WCB, WSIB or a benefits provider.
Always reference back to your terms of employment, contracts, collective agreements and other official documentation that guides expectations, obligations and the employment relationship.
When you are unsure, are experiencing a difference in view, opinion or how to proceed, get input from a subject matter expert (SME) such as an Employment Lawyer, HR advisor or H&S specialist.
Be sure that you documents all meetings, the accommodation plan, timelines and other pertinent facts for both you and the employee.
Where an accommodation plan has been agreed upon, be sure that it is revisited regularly to assess what is or isn't working, what may have changed about the situation and to ensure that everything is still current and relevant.
If you are reviewing your accommodation processes or protocols, this is also a great time to review your accessibility program and look for areas where better alignment may be needed and to confirm that both programs are compliant with current requirements in your jurisdiction.
If you need assistance understanding the requirements in your area, help ensuring that your plans are appropriate or have an accommodation challenge in your dealership, we can help. Contact us at email@example.com to learn more about the services we provide to our subscribers.