The human condition is such that anyone can suffer an illness or become disabled at any time. It can occur suddenly or manifest itself over time. It can impact your life, your employment and in turn, your financial stability. Nobody asks for an illness or disability on purpose. And your employer cannot discriminate against you for something that is beyond your control. That is why Ontario’s Human Rights Code offers employees some protection under these circumstances. When an illness or disability strikes, your employer must make reasonable efforts to ensure you remain employed. This is known as an employer’s duty to accommodate.
What is Duty to Accommodate?
Generally, employees request an accommodation after returning from a medical leave of absence, including Short Term or Long Term Disability leaves. While general guidelines do exist, the type of accommodations requested depends on your individual circumstances. You can seek temporary accommodation that lasts a few weeks to allow you to ease back into your normal duties. If you have suffered a permanent disability, then you could certainly request an assignment to a different job, where reasonable. Examples include:
- flexible work schedule and/or reduced hours
- time off for therapy and medical appointments
- modified duties and responsibilities
- transfer to another position
- modifying work rules or policies
- ergonomic assessments and modification of the work environment
Duty to Accommodate – Dealing With Your Employer
Following a request for accommodation, your employer may want to assess what is and what may not be possible to provide. They are entitled to receive sufficient notice to pursue this investigation and also to set in place proper accommodation for you. After all, the primary principle of accommodation legislation is to reach a balance between your rights and that of your employer to operate an effective workplace.
Sometimes, they will ask for medical proof, especially if your condition is not obviously apparent. When this occurs, recognize that they cannot ask for a diagnosis or disclosure of your medical file. Your physician may simply provide details of your functional limitations along with an estimate of how long you require the accommodation for. This information should be shared with only those individuals who need to know. And most important of all, they must respect your privacy and follow federal and provincial privacy legislation, including PIPEDA (Personal Information Protection and Electronic Documents Act).
Accommodating Medical Cannabis and Addiction
Following the legalization of cannabis in 2019, accommodations relating to medical cannabis and addictions stemming from drug use have become increasingly relevant. While recreational cannabis use is not a human right in itself, disabilities stemming from an addiction to cannabis, and from cannabis-based medications for an injury or illness are. Employees prescribed medical cannabis and those who suffer from drug (or alcohol) addictions are protected by federal and provincial human rights law.
Employees using medical cannabis should keep records of prescriptions. Since Cannabis can impair concentration, reaction time and co-ordination, employers can challenge the use of cannabis while on the clock, and may refuse to accommodate an employee where there are significant safety considerations and/or where the use of cannabis would prevent a worker from fulfilling their job duties.
To seek accommodation for an addiction, employees should disclose an addiction to their human resources representative in writing. An employer may accommodate the employee by providing them with time off work to seek treatment. Accommodation is a two-way street, and employees should communicate their problems where possible so that they protect themselves from adverse consequences caused by, for example, poor performance, and so that the employer’s obligations under human rights laws are triggered.
Can Your Employer Refuse To Accommodate?
The Employer’s Duty To Accommodate is not always a welcome prospect in all workplaces. There are those employers who simply do not care for unproductive employees, no matter what the situation. Accommodating ill or disabled employees can add costs, cause disruption and affect the processes they have always had in place. And furthermore, if the person who filled in for you is doing a good job, then your request for accommodation will simply be viewed as additional aggravation.
When you place a request for accommodation accompanied by proper documentation from your medical team, your employer must provide the accommodation unless they can prove it would cause them undue hardship. And the courts set the bar very high for defining this hardship. A declaration of the costs being too high or it presenting a risk to health and safety does not legally cut it. Your employer must provide substantial documented evidence to support those statements.
Family Status Accommodation During COVID-19
COVID-19 and the resulting closure of schools across the province has forced many employees to come up with creative solutions to meet their work and family obligations. Employers have a duty to accommodate employees on the basis of family status, which is being in a parent and child relationship. Parents must show that they have made reasonable efforts to balance childcare and workplace obligations through pursuing reasonable alternative options. If no alternative options are available, an employer must accommodate the parent by any number of measures such as permitting the employee to work from home, modifying work shifts or having flexible start times and altered work hours if possible.
Getting Legal Help
If you require workplace accommodation and believe that your employer is not complying with the spirit and intent of the duty to accommodate legislation, you will likely require legal assistance. Our first task would be to secure your means of earning a living. Accordingly, we would negotiate your accommodation and provide you with proper guidance throughout the process.
Do not allow your employer to frustrate you into an unwilling resignation.
Accommodation negotiations require an experienced employment lawyer who is also well versed in medical knowledge. Lecker & Associate lawyers specialize in this niche. We have successfully negotiated accommodations disputes for over 35 years. We can likely help you better than anyone else.