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Accomodation at Work in Ontario

Under Ontario law, employers must create an inclusive and productive workplace by making it accessible for employees with disabilities. This means they need to make reasonable changes to help employees with disabilities, according to the Ontario Human Rights Code (OHRC). These changes, called accommodations, could include things like modifying workstations, adjusting work hours, or providing special equipment. Employers must provide these accommodations unless it causes “undue hardship.” In simple terms, this means that the changes would be too difficult or too expensive for the employer to manage.

For example, if an employee needs a special ergonomic chair for their back issue and it costs a reasonable amount, the employer should provide it. However, if the requested change is so costly that it would seriously affect the business, the employer might not be required to make that change because it is unduly burdensome. Please note that this is a simplified explanation, and that it is important to consult with a lawyer when dealing with these issues to ensure the best legal outcomes. As such, this explanation should not be substituted for legal advice.

What are the Employer’s Responsibilities Regarding Workplace Accommodation?

As previously stated, the OHRC mandates employers in Ontario to provide accommodations for workers with disabilities. This responsibility includes modifying the workplace or the way that work is carried out so that employees with impairments can effectively perform their work duties. Adjusting workstations and hours, as well as offering assistive technology and support services like sign language interpreters, are some examples of the kinds of accommodations that an employer may offer.

It is required for employers to collaborate with employees to determine appropriate modifications, and they must implement these changes unless doing so would constitute an undue hardship. Legal action and complaints to the Ontario Human Rights Commission might result from an employer’s failure to make a reasonable accommodation.

How does an Employee Request Accommodation?

Workers should communicate to their employer as soon as feasible about their need for accommodations, either in writing or verbally, setting out the specific accommodations needed and the nature of their disability.

Employees are not required to reveal their specific medical condition, but they should give enough details so that the employer is aware of the restrictions and any modifications that may be required. Generally, employers do not have the right to ask you about the specific details about your condition unless it is relevant to your work performance. However, please note that individual circumstances vary, and as such, it is crucial that you consult with an experienced lawyer in employment law to obtain the best possible legal outcomes.

Employers in Ontario can request medical documentation to understand an employee’s need for accommodation. After the employee provides notification of their need, an interactive discussion between the employer and employee should take place to decide on appropriate accommodations. If an employee feels their request is not being adequately handled, they can file a complaint or seek assistance from the Ontario Human Rights Commission (OHRC).

What is an ‘Undue Hardship’?

The term “undue hardship” refers to the threshold for excessive difficulty or cost an employer might incur in making accommodations. The determination of undue hardship in Ontario takes into consideration a plethora of factors, such as expenses, external financing sources, and health and safety regulations. Employers, considering the organization’s size and resources, must show that accommodating an employee will lead to more than a minimal inconvenience or expense.

Valid health and safety concerns need to be supported by clear, objective data. Employers who make claims of undue difficulty must back them up with unambiguous documentation, including financial statements or professional opinions. The burden of proof for demonstrating undue hardship is quite high; employers must first attempt every reasonable accommodation before using this defence.

Understanding Workplace Investigations

What Rights do Employees have if their Accommodation Request is Rejected?

If an employee’s request for accommodations is denied, they have a couple of options. Through the human resources division of their business, they can try to handle the problem internally. Employees can register a complaint with the Ontario Human Rights Commission, which will look into the matter and might even arbitrate a resolution, if internal efforts are unsuccessful. The Human Rights Tribunal of Ontario may hear the matter if mediation is not effective and may impose remedies like compensation, reinstatement, and policy changes.

Additionally, workers are legally protected from reprisals if they report a problem or ask for accommodations. Put another way, employers are prohibited by law to penalize or retaliate against any employee for asserting their OHRCprotected rights.

Tips for Creating an Inclusive and Accessible Workplace for Employees with Disabilities

Creating an inclusive and diverse workplace involves taking proactive steps to ensure accessibility and support for employees with disabilities, as opposed to taking a passive approach to the matter.

Employers should implement a comprehensive accommodation policy and provide training for managers and staff on disability awareness. Regularly reviewing workplace policies and practices to identify and eliminate barriers is highly important. Moreover, providing accessible facilities, such as wheelchair ramps, elevators, and adjustable workstations, and considering flexible work arrangements like telecommuting and flexible hours are important measures.

This does not only apply to physical disabilities. It is important to prioritize inclusivity and accommodation for mental health needs in the workplace. This includes being open and supportive about stress leaves or mental health leaves for employees dealing with mental health disabilities. Providing such accommodations ensures a healthier, more productive work environment and demonstrates a commitment to employee well-being.

Facilitating open communication and creating a supportive and collegial environment where employees feel comfortable disclosing their accommodation needs is highly important. Partnering with organizations specializing in disability employment services can also provide valuable insights and resources. An inclusive and accessibility workplace not only meets legal obligations but also boosts employee well-being, morale, productivity, and retention.

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Recent Cases

G.N.  v. E.R., 2023 FC 950

In this case, the Court examined the duty to accommodate within the context of age discrimination. The applicants, a group of 43 former Air Canada pilots, alleged that their mandatory retirement at age 60 was an act of age discrimination under the Canadian Human Rights Act (CHRA). This case provides insight into how courts might balance employer policies with the duty to accommodate workers.

In prior cases, the Tribunal had found that 60 was the normal retirement age for pilots in comparable positions. As such, this precedent greatly influenced the Tribunal’s decision in this case.

The applicants argued that the Tribunal needed to hear new evidence to determine the appropriate comparators and the normal retirement age for pilots during the relevant period. However, the Tribunal decided to rely on the established factors, considering this approach fair and consistent with prior jurisprudence. The Tribunal concluded that the applicants had not provided adequate reasoning to depart from the established norm about retirement ages.

On appeal to the Federal Court, the Court rejected the applicants’ request for judicial review, emphasizing that the Tribunal had used a reasonable and consistent approach. Additionally, the Court stressed the importance of the prematurity principle, stating that judicial review of interim administrative decisions should be reserved for exceptional circumstances, which were not present in this case. The “prematurity principle” prevents premature legal proceedings and encourages people to complete of the administrative process before seeking intervention from the Court.

Ultimately, this case shows us the importance of established legal precedents in determining the duty to accommodate and illustrates the challenges in disputing long-standing employment policies. The case reaffirms that employers must demonstrate undue hardship to justify departing from the legal obligation to adequately accommodate employees’ needs, but also that such determinations depend largely on consistent application of legal standards and prior case law.

G.V. v. Air Can. (2009), 344 F.T.R. 104 (FC)

This case pertains to the mandatory retirement provisions under a collective agreement that required Air Canada pilots to retire at age 60. G.V., one of two Air Canada pilots involved in this case, challenged this provision, arguing it was discriminatory under the Canadian Human Rights Act (CHRA).

The Canadian Human Rights Tribunal initially dismissed their complaints, finding that age 60 was a “standard age of retirement” in the airline industry, thereby falling within an exception in the CHRA (s. 15(1)(c)), which allows for mandatory retirement if it reflects the normal retirement age in the industry. The Tribunal also found that this provision did not violate section 15(1) of the Canadian Charter of Rights and Freedoms, which guarantees equality rights.

The pilots and the Canadian Human Rights Commission sought judicial review of the Tribunal’s decision. They asserted that the Tribunal erred in determining the normal retirement age and challenged the constitutionality of s. 15(1)(c) of the CHRA. The Federal Court found errors in the Tribunal’s analysis regarding the normal age of retirement, particularly in comparing the pilots’ positions to those in foreign countries and the airline industry broadly, rather than focusing on domestic standards.

Despite these errors, the Court deemed the Tribunal’s conclusion that age 60 was the normal retirement age reasonable. Thus, the Canadian Human Rights Commission’s application for judicial review was dismissed. However, the court found that s. 15(1)(c) of the CHRA violated s. 15(1) of the Canadian Charter as it enabled discrimination against older workers by denying them equal protection and benefit of the law, reinforcing negative stereotypes about their abilities.

As such, the Court allowed the pilots’ applications for judicial review, set aside the Tribunal’s decision regarding the Charter issue, and remitted the matter back to the Tribunal for reconsideration in line with the Federal Court’s findings. This case highlights the balance between industry norms and individual rights, emphasizing the importance of a thorough and contextually appropriate analysis in determining what constitutes the normal age of retirement in employment discrimination cases.

OPSEU (Hyland) v. Ontario (Solicitor General), 2021 CanLII 26637

The primary legal issue here was the duty of the employer to accommodate an employee with disabilities. B.H., a correctional officer at the Central East Correctional Centre (CECC), had the medical condition asthma and a serious sensitivity and intolerance to cigarette smoke. His grievances pertained to the employer’s failure to foster and enforce a smoke-free environment and the assignment of duties that were incompatible with his medical needs.

B.H. accommodation requirements included a smoke-free work environment and specific work hours that did not exceed 5:00 p.m. and excluded weekends. Despite these requirements, he encountered cigarette smoke frequently and was assigned duties that constrained his role, negatively affecting his mental health and work satisfaction. The employer argued that they had made reasonable efforts to enforce the smoking policy and accommodate his needs, but evidence showed that smoking violations persisted, and meaningful disciplinary actions for policy breaches was lacking.

The arbitrator found that the employer did not meet their duty to accommodate under the OHRC. The decision highlighted that merely assigning a role that meets medical restrictions is insufficient if better alternatives exist that allow the employee to utilize their skills fully. Additionally, the failure to enforce the smoking policy significantly impacted B.H. health and well-being.

As a result, the arbitrator awarded B.H. damages for the stress and anxiety caused by the employer’s failure to provide adequate accommodations. This case underscores the importance for employers to actively enforce workplace policies that support accommodations and ensure that disabled employees are not marginalized or singled out due to their accommodations. It also highlights the potential legal consequences of failing to meet these accommodation requirements.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.