An Employer’s Obligation to Accommodate

Our blog today is written with Julie Holden, Principal – Holden & Associates Consulting Inc. who works with employers to navigate workplace absence, disability management and mental health. She is a Certified Psychological Health & Safety Advisor and can be reached here.

Most employers understand that looking out for an employee when they become ill and through their recovery is not only the right thing to do but it makes good cultural sense as well. How many understand that this is now required by law and begins to apply as early as the recruitment process?

For example, a prospective employee can request to switch the date or time of an interview because of childcare obligations or sickness under the Ontario Human Rights Code. Not agreeing to accommodate a candidate may be deemed discriminatory on the basis of family status.

The candidate’s need for a modified computer screen to complete a recruitment screening test also represents an accommodation that must be met. The Code requires that organizations recognize and respond to any undue hardship that may create an unfair playing field.

The Code prescribes no absolute test for whether accommodation is reasonable, but the bar is higher for large corporations than say small family-run businesses but in all cases a good faith process must be demonstrated. Most times “accommodation” represents a minimal cost and may be nothing more than demonstrating flexible policies. In these times of virtually full employment such arrangements may help to identify outstanding potential employees.

Undue hardship arises when accommodation would significantly increase cost, require external funding or create a health and safety breach for the employer.

The employer may ask for reasonable information when an employee with a physical or mental disability seeks accommodation, but may not breach the employee’s right to privacy. This can be a delicate balance which the employer must strive to achieve. A Functional Abilities Form (FAF) can be completed following a review of their Job Description by a candidate’s or an employee’s physician.

The FAF sets out the daily requirement to sit, stand, focus on a computer screen, or provide customer service functions. With this information, the physician can indicate what the employee can and cannot do in relation to the job but not details of the diagnosis or treatment plan, which remain confidential; a more comprehensive picture than a doctor’s note.

With this information the accommodation plan for an interview or a sustainable return to work can commence. An Accommodation Policy will ensure that employees can return to their pre-incapacity life without undue pressure and a little help from their employer – which is also the legal requirement!