When it comes to accommodation in the workplace, both employers and employees have certain rights and responsibilities. When an individual does disclose to their employer that they have a disability for which they need accommodation, there are certain criteria that must be met. The following information was adapted from the Ontario Human Rights Commission Website.
There is no legal obligation for you to disclose information about your disability unless:
- It is likely to affect your performance or ability to meet the inherent requirements of the job
- The inherent or essential requirements of the job are tasks that must be carried out in order to get the job done
- It impacts your ability to work safely and ensure the safety of co-workers
- You may also need to discuss your disability with your employer if you need to request accommodations when being considered for the job, such as interview arrangements, or when doing the job, such as modified equipment or flexible working arrangements work with the employer and union on an ongoing basis to manage the accommodation process
- The confidential and respectful treatment of information about your disability
- Access information about an organization’s equity policies, practices, and strategies
- Request information from an employer about the collection of your personal information, including information about your disability, and how it is used by the organization
- Choose whether to disclose your disability at any point while looking for work
You also have the following responsibilities in relation to disclosure:
- Disclosure prior to commencement of a job does not remove your responsibility in disclosing your disability once you are working for an organization if you require further work related accommodations and modifications
- You need to address the essential requirements of an advertised position, regardless of any preliminary discussions that may take place with an employer
As an Employer your responsibilities are:
- Not discriminate directly by treating you less favorably than a person without the disability would be treated in the same or similar circumstances
- Not discriminate indirectly by having a requirement or condition or practice that is the same for everyone but which is less favorable in its impact on you
- Make reasonable accommodations for you where required
- Avoid and prevent harassment of you
Employers providing accommodations should be aware of the standards for accommodation. The following guiding principles should be kept in mind:
- The needs of persons with disabilities must be accommodated in the manner that most respects their dignity, to the point of undue hardship
- There is no set formula for accommodation – each person has unique needs and it is important to consult with the person involved
- Taking responsibility and showing willingness to explore solutions is a key part of treating people respectfully and with dignity
- Voluntary compliance may avoid complaints under the Code, as well as save the time and expense needed to defend against them
The Ontario Human Rights Code prescribes three considerations in assessing whether an accommodation would cause undue hardship - Cost, Outside sources of funding, Health and Safety requirements.
A cost is 'undue' if it is so high that it affects the survival of the organization or business, or changes its essential nature. Such costs must be quantifiable and can include costs such as capital and operating costs and the cost of re-structuring. Human rights law recognizes that different businesses have different financial circumstances. What may be an 'undue cost' for a small business, may not be undue for a larger one. If the accommodation requires the business to fundamentally change what the business does, that may also be 'undue'.
Outside Sources of Funding
Accommodation funds (often available in the public sector), as well as government grants or loans, can offset some costs, and should be considered in assessing undue hardship. If the cost of an accommodation is too large to carry out all at once, it may be possible to phase it in over time, or to create a reserve fund.
Health and Safety
Factors may limit the accommodation that is possible. However, it must first be decided whether any applicable health and safety requirements can be waived or modified, or if alternatives can be found to protect health and safety. If Ontario health and safety laws do not allow a health and safety requirement to be waived, equivalent safety measures can still be used.
If the person with a disability wants to take on some degree of risk, this may be acceptable provided he or she is fully informed of the risk and there is no risk to anyone else. No one is entitled to assume a real and serious risk if there is a demonstrable probability of substantial harm to anyone.
For a list of community and government agencies that may be able to assist with providing accommodations or information about accommodations, in the workplace visit our Resources page.