8. Meeting the accommodation needs of employees on the job

a) Duty to accommodate to the point of undue hardship

The Code requires an effort, short of undue hardship, to accommodate the needs of persons who are protected by the Code. It would be unfair to exclude someone from the workplace or activities in the workplace because their Code-protected needs are different from the majority. The principle of accommodation applies to all grounds of the Code, but accommodation issues in employment most often relate to the needs of:

employees with disabilities (disability)
older workers (age)
employees with religious needs (creed)
pregnant women (sex)
employees with caregiving responsibilities (family status).

This section will discuss the principle of accommodation, duties and responsibilities in the accommodation process, and limits to the duty to accommodate. Then, specifics will be outlined relating to the discrimination grounds set out above.

b) The principle of accommodation

The right to be accommodated and the duties of the employer and union are now well-established in statute and case law. The applicable principles are set out in the most detail in the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate and are summarized here.

Accommodation is a fundamental and integral part of the right to equal treatment. The principle of accommodation involves three factors: dignity, individualization and inclusion.

Dignity: Persons must be accommodated in a way that most respects their dignity, including their privacy, confidentiality, comfort and autonomy.
Individualization: There is no set formula for accommodation. Each person's needs are unique and must be considered afresh when an accommodation request is made. A solution may meet one person's requirements but not another's, although many accommodations will benefit many other people with similar needs.
Inclusion: Achieving integration and full participation requires barrier-free and inclusive design and removing existing barriers. Preventing and removing barriers means all persons should have access to their environment and face the same duties and requirements with dignity and without impediment. See also Section IV-1a(i) – “Preventing, reviewing and removing barriers.”

The most appropriate accommodation must be identified and implemented short of undue hardship. Deciding what is and is not an appropriate accommodation is a separate analysis from an undue hardship analysis. An accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges experienced by others, or if it is proposed or adopted to achieve opportunity and meets the individual’s needs related to the relevant Code ground. The most appropriate accommodation will be the one that most promotes inclusion and full participation, and effectively addresses any systemic issues.

Example: Instead of making a one-time exemption for an employee with major caregiving responsibilities, an employer re-examines whether the need for staff to work 10-hour shifts full-time is a bona fide requirement. When it decides that it is not, it alters the rule, and provides for eight-hour shifts and part-time work.

Accommodation may take one of two forms. It may involve meeting the needs of someone based on the needs of the group he or she belongs to (see for example, subsection 11(2) of the Code). Or, it may involve meeting the needs of a person (such as a person with disabilities) assessed on an individual basis (see for example, subsections 17(2) and 24(2) of the Code).

Accommodation may be possible by modifying the terms and conditions of employment or by making adjustments in the workplace. For example, in a job where driving is an essential duty, an employer can accommodate an applicant with a disability by modifying a company car to meet the person’s individual needs unless doing so would cause undue hardship. Accommodation may range from modifications that completely respect an individual's right to privacy, autonomy and dignity on one end of the spectrum, to those that least respect them on the other end of the spectrum. Accommodations that do not respect the person's privacy, autonomy and dignity are not acceptable.

A one-time expenditure for some forms of accommodation may be too onerous on an employer. Therefore, in certain situations, accommodation may be provided on an interim basis or may be phased in, as long as the timeframe is reasonable. This approach could protect the employer from potential complaints that it failed to accommodate. However, the appropriateness of an interim or phased-in accommodation depends on an undue hardship analysis of the particular case.

Collective agreements or other contract arrangements cannot act as a bar to providing accommodation. The courts have determined that collective agreements and contracts must give way to the requirements of human rights law.^[48] To allow otherwise would be to permit the parties to contract out of their Code rights under a private agreement. Subject to the undue hardship standard, the terms of a collective agreement or other contract cannot justify discrimination that is prohibited by the Code.

Employers and unions have a joint responsibility to find a solution when accommodation conflicts with the collective agreement. The Supreme Court of Canada has noted, however, that although the principle of equal liability applies, the employer has charge of the workplace and is in a better position to create measures of accommodation.^[49] Therefore, the employer can be expected to start the process of accommodating an employee. But, the Supreme Court also noted that it will not absolve a union of its duty if the union fails to suggest available alternatives. When the union and the employer discriminate, they share an obligation to remove or alleviate the source of discrimination.

If an employer and a union cannot agree on how to solve an accommodation issue, the employer must make the accommodation in spite of the collective agreement, unless it would cause undue hardship. If the union opposes the accommodation, or does not co-operate in the accommodation process, then the union may be named as a respondent in a human rights complaint.

Unions have to meet the same requirements of demonstrating undue hardship. For example, if the disruption to a collective agreement can be shown to create direct financial costs, this can be taken into account under the cost standard.

The procedure to assess accommodation is as important as the substantive content of the accommodation.^[50] If an employer fails to appropriately explore and individually assess accommodation options, this can be viewed as a separate breach of the Code.

Example: A woman is hired as a live-in caregiver for two young children. When her employment started, she tells her employer that she is pregnant and experiencing nausea but still wants the job. The employer decides not to proceed with the employment because of concerns about how the woman would deal with the physical demands of the job, given her pregnancy symptoms. The employer has not met its procedural duty to accommodate.

Example: A man discloses his disability, bipolar disorder, shortly after he is hired. Rather than assessing the nature of his accommodation requirements against the essential duties of the position and the undue hardship standard, the employer uses discriminatory stereotypes and leaps to the conclusion that the employee cannot fulfill his position. The employee is fired eight days into his probationary period. The employer has not met its procedural duty to accommodate.

Human rights tribunals found discrimination existed in both of these examples. A key element of this finding in both cases was that the employer did not start an adequate process for determining whether accommodation was possible without undue hardship. See also Section IV-8d) – “What is undue hardship?” and Appendix E – “Accommodation template for employers.”

c) Overview of duties and responsibilities

Workplaces are expected to have accommodation policies and procedures in place. Unions and employers should work together to make sure that policies are developed and advertised so that employees know their rights. Managers and supervisors also need to know the process to follow when an accommodation request is made. For more information about how to develop an accommodation policy, see Section IV-1a(iv) – “Accommodation policy and procedure.”

It is also expected that the appropriate accommodation to meet an employee’s Code-related needs might change over time. Thus, accommodation requests and steps taken must be monitored and adjusted as needed, based on changes in the circumstances of the employee, employer and the workplace.

Employees, employers and unions all have duties and responsibilities during accommodation.

i) Employees:

request accommodation
explain why accommodation is required, so that needs are known
make his or her needs known to the best of his or her ability, preferably in writing
answer questions or provide information about relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed
take part in discussions on possible accommodation solutions
co-operate with any experts whose assistance is required
meet agreed-upon performance and job standards once accommodation is provided
work with the employer on an ongoing basis to manage the accommodation process
discuss his or her accommodation needs only with persons who need to know. This may include the supervisor, a union representative or human rights staff.

Many claims of discrimination arise from an employer cutting short an accommodation process because of a perception than an employee is not fulfilling his or her requirements. There are certainly cases where, despite an employer’s best efforts to provide accommodation, this cannot be done because of an employee’s unwillingness to co-operate.

Example: An employee has a terrible attendance record. The employer offers accommodation and requests information relating to any Code grounds that may be affecting her ability to be at work regularly. The employee is informed of the employer’s accommodation policies and procedures and yet makes no request for accommodation other than to say that she has a disability. The employer refers her to an employee assistance program (EAP) and offers her paid time off to consult with professionals or seek medical evaluation. The employee declines both of these.

When the attendance concerns continue over a long time, the employer starts a process of progressive discipline leading to termination, all the while noting that it is prepared to accommodate any needs to the point of undue hardship. Because she did not co-operate in the process, the employee will have a tough time showing that she has been subjected to discrimination.

On the other hand, out of fear of stigma or discrimination, employees may, quite understandably, hide accommodation requirements until it is absolutely necessary to disclose them. The fact that an employee has lied about accommodation requirements in an early stage of a job screening or application process is not relevant to the analysis of whether the employer met the duty to accommodate once an accommodation need has been identified on the job.

Similarly, employees may disengage from a flawed process of accommodation conducted by an employer. An assessment of an allegation that an employee’s lack of cooperation undermined an accommodation process will always include a critical assessment of the sequence of events that preceded the breakdown in the accommodation process. If the accommodation process is inflexible, punitive, or not carried out in good faith by an employer, a tribunal might find that the employee’s actions are reasonable in the circumstances and that it is the employer who has failed in its duty to accommodate.

ii) Unions:

take an active role as partners in the accommodation process
share responsibility with the employer to facilitate accommodation, including taking an active role in suggesting and testing alternative approaches, and cooperating fully when solutions are proposed
respect the privacy of the person requesting accommodation
support accommodation measures no matter what collective agreements say, unless to do so would create undue hardship.

See also Section III-4d) – “Unions.”

iii) Employers:

accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting
otherwise
get expert opinions or advice where needed
take an active role in making sure that alternative approaches and possible accommodation solutions are investigated, and research various forms of possible accommodation and alternative solutions as part of the duty to accommodate
keep a record of the accommodation request and action taken
maintain confidentiality
limit requests for information to those reasonably related to the nature of the limitation or restriction, to be able to respond to the accommodation request
grant accommodation requests in a timely way, to the point of undue hardship, even when the request for accommodation does not use any specific formal language
pay the cost of any required medical information or documentation. For example, employers should pay for doctors’ notes and letters setting out accommodation needs
where accommodation would cause undue hardship, explain this clearly to the employee and be prepared to show why this is the case.

iv) Role of an insurance provider – employer is still responsible for accommodation

Human rights issues may arise when an employer outsources all or part of its accommodation process to an insurance provider. The insurance provider has an interest in returning an employee to work and keeping costs low. Sometimes these goals conflict with implementing appropriate accommodation and the undue hardship standard. The insurance provider may be named as a respondent in a human rights claim along with the employer.

Example: An employee’s doctor’s note says that he is unable to return to work due to his disability and sets out a return to work date three months in the future. The insurance provider challenges the prognosis without a legitimate basis and ultimately takes the position that the employee is no longer disabled, does not qualify for benefits and must report to work immediately. The employer, on the advice of the insurance provider, progressively disciplines the employee for his failure to attend at work. He is terminated from employment for having “abandoned his position.” This employer has failed in its own duties under the Code even though it was relying on the advice and expertise of the insurance provider. The insurance provider has also contravened the Code.

Although the insurance company would also have obligations as a service-provider, the employer bears the primary responsibility to accommodate its employee’s needs to the point of undue hardship. The insurance company does not itself have the ability to modify the job, the workplace or workplace rules and policies – these are within the control of the employer.^[51]

An employer is not relieved of its obligations under the Code even if an insurer is the primary point of contact in planning an employee’s accommodation or return to work after a short-term or long-term disability leave. The employer would be expected to take an active role in working with the insurer and employee to make sure that any return to work is appropriate based on the medical information. The assessment of undue hardship for an insurance company providing services would be separate from the assessment of undue hardship for the employer.

d) What is undue hardship?

Undue hardship is a defence under the Code. The employer has to prove that this defence applies, otherwise a finding of discrimination may be made. It is not up to the person requesting accommodation to prove that the accommodation can be accomplished without undue hardship.

The Code sets out only three items that may be considered in assessing whether an accommodation would cause undue hardship. These are set out in sections 11(2), 17(2) and 24(2) and are:

cost
outside sources of funding, if any
health and safety requirements, if any.

This means that the employer must present evidence showing that the financial cost of the accommodation (even with outside sources of funding) or health and safety risks would create undue hardship.

There is no doubt that an employer will likely have to spend some effort to accommodate its employees’ needs. However, some degree of hardship is to be expected – hence the test in the Code is “undue hardship” rather than “mild hardship” or “reasonable hardship.” An employer should only conclude that an accommodation request will amount to undue hardship after careful and rigorous consideration of all elements of the request and the organization’s ability to meet it. This should never be a first response to a request for accommodation. See Appendix E – “Accommodation template for employers” for guidance on the accommodation process.

Example: An employee requests a week off to attend to a family member’s mental illness. The employer says, “Sorry, but if I let you go off then everyone else will want time off – this would be an undue hardship for the company.”

In this case, the employer would be seen to have failed both in terms of the process, having not fully considered the accommodation request, and the substance of it, having failed to provide any accommodation. While the employer may have stated that undue hardship existed, this would not be sufficient to prove that undue hardship actually exists.

The evidence needed to prove undue hardship must be objective, real, direct, and, in the case of cost, quantifiable. The employer must provide facts, figures and scientific data or opinion to support a claim that the proposed accommodation causes undue hardship. A mere statement, without supporting evidence, that the cost or risk is “too high” based on impressions or stereotypes will not be enough.

Factors that are excluded from consideration and cannot be used to justify undue hardship include business inconvenience, employee morale and customer preference. Collective agreements cannot act as a bar to accommodation requests.

Only existing circumstances can be taken into account when considering undue hardship. Speculative risks and conditions that may arise in the future are not considered. For example, when a person with a disability has a condition that may deteriorate over time, the unpredictability and extent of future disability cannot be used as a basis for assessing present accommodation needs. A person with multiple sclerosis may, over time, become more easily tired – but it is not possible to accurately predict when, for how long, or in what way this will happen.

The fact that the employer has accommodated the needs of other employees or has accommodated the needs of the same employee in the past does not relieve it of its obligation to meet present and future accommodation needs. On the other hand, there may be circumstances where the total accommodation needs of many employees may amount to undue hardship. This too will be subject to assessment against the criteria noted below.

i) Cost of providing accommodation (including outside sources of funding):

An employer may be able to show that the costs of accommodation will cause undue hardship. Costs will amount to undue hardship if they are:

quantifiable
shown to be related to the accommodation
so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability.

Quantifiable costs related to accommodation include all projected costs that can be quantified and shown to be related to the proposed accommodation. However, mere speculation, for example, about monetary losses that may follow the accommodation of the person will not generally be acceptable. The financial costs of the accommodation may include:

capital costs, such as installing a ramp or buying screen magnification software
operating costs, such as sign language interpreters, personal attendants or extra staff time
costs incurred through restructuring that are made necessary by the accommodation
any other quantifiable costs incurred directly because of the accommodation.

The availability of outside sources of funding and other business considerations and practices that may alleviate any accommodation costs must first be considered.

Outside sources of funding include grants, subsidies or loans from government and non-government sources to improve building accessibility, tax credits or tax incentives for making such changes, and grants and services available directly to the person with disabilities.

Business considerations/practices include:

The size of the organization – what might prove to be a cost amounting to undue hardship for a small employer will
not likely be one for a large employer
Can the costs be recovered in the normal course of business?
Can other divisions, plants, etc. of the business help to absorb part of the costs?
Can the costs be phased in – so much per year or financed through loans?
Can the employer set aside a certain percentage of money per year to be placed in a reserve fund to be used for accommodation?

Both phasing in and setting up a reserve fund should be considered only after the person responsible for accommodation has shown that the most appropriate accommodation could not be accomplished right now.

ii) Health and safety risks:

Health and safety requirements may be set by law, regulation, rule, practice or procedure. They could also be set by the company itself or together with other companies in the same or similar kinds of business. Where a health and safety requirement creates a barrier for a person identified by a Code ground, the employer should assess whether it can be waived or modified.

If waiving the health and safety requirement is likely to violate the Occupational Health and Safety Act (OHSA), the employer should come up with alternative steps based on the equivalency clauses of the OHSA. These clauses allow for the use of alternative steps to those specified in its regulations, provided the alternative steps offer equal or better protection to
workers. Any such steps taken should be documented.

Modifying or waiving the health and safety requirement may create risks that have to be weighed against the employee's right to equality. Where the risk after accommodation is big enough to outweigh the benefits of enhancing equality, it will be considered to create undue hardship.

An employer can decide whether modifying or waiving a health or safety requirement creates a significant risk by assessing the following:

Is the employee willing to assume the risk in cases where the risk is solely to his or her own health or safety?
Has the risk been evaluated after all accommodations have been made to reduce it (as is expected)?
Would changing or waiving the requirement be reasonably likely to result in a serious risk to the health or safety of other persons?
What other types of risks are assumed within the enterprise?
What types of risks are tolerated within society as a whole, reflected in legislated standards such as licensing standards, or in similar types of enterprises?

Risk to an employee's own health and safety: An employer may believe that accommodation that would result in modifying or waiving a health or safety requirement could place the person at risk. The employer must explain the potential risk to the employee. The employee is usually the person who is best able to assess the risk. This applies only if the potential risk is to the employee's health or safety alone. Where the risk that remains after considering alternatives and after accommodation is big enough to outweigh the benefits of enhancing equality, it will be considered to be undue hardship.

Risk to health and safety of others: Where modification or waiver of a health or safety requirement is believed to result in a risk to the health or safety of other people, the degree of risk must be evaluated. The employer must consider other types of risks assumed within the company. A potential risk created by accommodation should be assessed in light of those other more common sources of risk in the workplace.

The seriousness of the risk should be judged after the employer takes suitable precautions to reduce it. In evaluating the seriousness of risk, consider the following factors:

The nature of the risk: What could happen that would be harmful?
The severity of the risk: How serious would the harm be if it occurred?
The probability of the risk: How likely is it that the potential harm will actually happen? Is it a real risk, or
merely hypothetical or speculative? Could it occur often?
The scope of the risk: Who will be affected if it occurs?

If the potential harm is minor and not very likely to occur, the risk should not be considered serious. If there is a risk to public safety, consideration will be given to the increased numbers of people potentially affected and the likelihood that the harmful event may occur.

iii) What about factors other than those listed in the Code?

Some court decisions and decisions of arbitrators in grievance proceedings suggest that factors such as seniority or impact on other union members may be considered in assessing undue hardship. However, the Commission’s position is that the Code only lists three factors to be assessed when considering undue hardship (cost, outside sources of funding, and health and safety). The other factors are not relevant, other than to the extent that they can be slotted into those three considerations.

Example: An employer and union are united in the position that providing a requested accommodation will cause undue hardship because of seniority and employee morale. If there is no objective evidence that the impact on other employees or seniority will cause undue hardship considering costs, funding and health and safety, the Commission’s position would be that tribunals should not consider these other factors.

e) The duty to accommodate – practical issues

This section addresses some of the common issues that employers grapple with when faced with accommodation requests from employees. For example, how much information is the employer entitled to and what happens when accommodation requests conflict with someone else’s rights?

i) What information is the employer entitled to?

Requests for accommodation may involve disclosing private or highly sensitive information. Persons requesting accommodation should be asked only for information needed to set the groundwork and respond appropriately to the accommodation request.

In some cases, the need for accommodation is obvious and there is no need for special documentation. For example, persons who use wheelchairs will have difficulty entering buildings that have steps, and pregnant employees will often need more bathroom breaks. Even where some documentation is required, this does not justify a “fishing expedition.” For example, a request for adjustments to computer equipment related to diminishing eyesight would not usually justify a request to review the accommodation seeker’s complete medical file. A careful approach to collecting documentation protects the privacy of the accommodation seeker, and protects the accommodation provider from potential complaints. All parties must exercise good faith
in seeking and giving information.

Employers can ask for more information about an accommodation request in the following cases:

where the accommodation request does not clearly show a need related to a Code ground
where more information on the employee’s limitations or restrictions is needed to find an appropriate accommodation
where there is an objective reason to question whether the request for accommodation is legitimate.

ii) What records should the employer keep and for how long? An employer should keep and safeguard the following kinds of information:

the accommodation request
any documents provided by the accommodation seeker or by experts
notes from any meetings
any accommodation alternatives explored
any accommodation provided.

For people to feel comfortable to make accommodation requests, they must feel confident that the information they provide will be treated confidentially, and shared only as needed for accommodation. Personal information should be kept in a secure place, separate from the person’s personnel file. It should only be shared with people who need the information to provide
the accommodation or to investigate any human rights allegations that may arise from the accommodation request and the employer’s response. These measures should be explained to employees in an accommodation policy and procedure. See Section IV-1a(iv) – “Accommodation policy and procedure.”

Subject to applicable privacy legislation and rules under the Employment Standards Act, these records should be kept until they can no longer serve one of the following purposes:

help the accommodation provider take appropriate accommodation steps (a past accommodation plan may need to be updated as needs change)
document the employer’s response to the employee’s human rights concerns and requests for accommodation for any court action or tribunal hearing. These documents should not be destroyed until any limitation periods have expired or, where an action or claim has been started, until it has ended.

The Employment Standards Act provides that employee records about a leave should be kept until three years after the leave has ended, and that other types of records should be kept for three years after employment ends. These are minimum requirements and should be extended where a human rights claim may be filed. The employer is expected to keep all records where a human rights claim has been initiated, and could be held liable if relevant documents are destroyed. An employer who prematurely destroys accommodation records may be unable to show that the process and substance of the accommodation were appropriate and to establish the existence of undue hardship.

Example: In 2002, an employer provided an employee with accommodation, including a leave. This employee returned to work in spring 2003 and was fired in the fall of 2005. At the termination meeting, he said that he intended to file a human rights complaint. Before receiving the complaint and in accordance with company policies, all the employment records on this employee’s accommodation and leave were destroyed in early 2006.

A human rights complaint is received in the summer of 2006, alleging that the employer failed to accommodate his disability in 2002 and 2003 and that this was a factor in terminating his employment in 2005. Proceedings before a human rights tribunal do not start until much later. The employer may have met its duties under the Code and the termination may have been non-discriminatory. However, when the case is heard, the employer will have a hard time proving this without documents created at the time the incidents occurred.

iii) What if an employee cannot meet a standard even with accommodation?

If an employee seems to be unable to meet a standard, even with accommodation, the employer should step back and make sure that any such requirements are bona fide. Refer to Section IV-2 – “Setting job requirements” for guidance on how to assess job requirements.

iv) Accommodating when rights appear to conflict:

From time to time, employers may have to deal with cases where an employee’s request for accommodation seems to conflict with another right under the Code. These may be rights of other employees or those of the people the organization serves.

Example: A hospital provides a wide range of services including performing abortions, consistent with its responsibility to provide equal treatment in services under the Code. However, it also has a duty to accommodate creed-related needs of the doctors and nurses, who may ask to be excused from providing such services based on religious grounds.

This is different from cases where accommodation of one person’s or group’s Code-related needs is challenged by others who are not themselves asserting a Code-protected right or a right under the Charter. Code rights must be respected regardless of other considerations, such as customer preference or conflict with a collective agreement.

Example: Female Muslim employees ask for the accommodation of being allowed to wear headscarves with their uniforms. The non-Muslim male employees complain that they are not allowed to wear baseball caps so why should these employees get special treatment. There is no conflict here between the duty to accommodate and another Code right.

Employers are expected to plan ahead to make sure they can meet the needs of service users and employees who have accommodation requirements. If an organization provides services to the public, services must be provided equally and without discrimination. This is an issue separate and apart from the organization’s obligations to its employees. The fact that an employer has provided accommodation to its employees is not necessarily a defence to a claim of discrimination by a service-user who has received a sub-standard level of service or been denied a service.

Example: A driver employed by an organization is sent to pick up a blind man with a dog. The driver, who is Muslim, does not allow the dog into the car. The driver states that his Muslim faith prevents him from associating with dogs and therefore he refuses to give the man the ride. This results in a denial of service and a human rights complaint is filed based on disability. The employer cannot rely only on the Muslim employee’s religious needs as a defence to this complaint. It will need to show that it has taken steps to make sure the service will not be denied, even though some of its drivers may need accommodation, subject to the undue hardship standard.

These kinds of situations of competing rights raise complex issues, and are currently the subject of further research and policy development by the Commission. Before taking an action that would effectively deny either an employee or a service-user the ability to exercise their rights under the Code, an employer should make sure it has fully explored whether there are any creative solutions that would enable it to meet both needs. Employers who find themselves in this situation are welcome to call the Commission for advice.

v) Facilitating a return to work after a Code-related leave:

People who return to work after a Code-related absence, such as disability leave, maternity leave or leave to deal with a family member’s medical emergency, are protected by the Code. They generally have the right to return to their jobs or a similar job, subject to undue hardship. This will often require that the employee only be replaced on a temporary basis and the position be held until the employee returns. Where the employee is replaced permanently and is denied an opportunity to return to work, the employer will be seen as not having met the duty to accommodate.

Example: An employee tells her employer that she will be away from the workplace for one year due to maternity and parental leave. The employer fills her position on a permanent basis, and when she returns, she is told that she needs to apply for another vacancy as her job has been filled. This employee’s rights under the Code have not been respected.

Accommodation is a fundamental and integral part of the right to equal treatment in returning to work. When notified that an employee intends to return to work, the employer should determine whether there are any accommodation requirements, either in the short or long term. Both employers and unions must co-operate in accommodating employees who are returning to work after a Code-related absence. All parties to the accommodation process need to be aware of their duties and responsibilities. See Section IV-8c) – “Overview of duties and responsibilities.”

Even if changes have been made to the position or the workplace for legitimate business reasons during the employee’s absence, the employer is expected to explore other options to make sure that the employee is not penalized because of his or her Code-related absence from the workplace.

Example: An employee works as a program co-ordinator for a private school when she goes off on a leave. When she returns to work, she is told that her position has been “closed” due to declining enrolment and financial problems. The woman could have worked as an instructor as she had taught complex courses in the past, but this was not considered. This was viewed as discriminatory because the employer had no legitimate business reason for not offering her this opportunity in light of eliminating the position she previously held.

vi) Dress codes and accommodation requests:

If the nature of the job raises valid health and safety concerns, an employer may legitimately impose certain dress codes. For example, restaurant workers may be asked to keep their hair with a net or other appropriate head covering, or workers on a construction site may be asked to wear protective gear. When dealing with requests for Code-related accommodation related to dress codes, employers should consider:

the exact nature of the request
which ground in the Code applies
the reason for the uniform, dress code or safety equipment
the steps, including alternatives, that can be taken to accommodate the person
health or safety hazards for either the person seeking the accommodation or for other employees, and the evidence that such hazards would be undue hardship for the employer.

Sex: Accommodation should be provided with regard to pregnancy-related needs.

Creed: As a rule, work uniforms imposed without a health or safety rationale should be modified to permit a person to wear items of clothing required by his or her religion.

Example: An employer requires counter staff to wear a uniform that includes a hat. A Muslim employee covers her head with a scarf because of her religious beliefs. The employer has a duty to accommodate the employee and to let her wear the head covering instead of the uniform hat.

Although some types of clothing are a reasonable occupational necessity, the employer, subject to the limit of undue hardship, is obliged to accommodate. For example, an employer should try to modify the required apparel so that the person can wear religious items safely.

An employer should be wary about prohibiting any Sikh employee from wearing a ceremonial dagger, or kirpan, in the workplace. In most cases, any health and safety risks can be lessened by steps such as requiring it to be safely concealed. See also Section IV-8f(ii) – “Creed – accommodating employees’ religious needs.”

vii) Flexible work arrangements – break times and days off:

Traditionally, being in the workforce has been seen as an “all or nothing” option: people either work full-time, are retired or are off on leave. For older employees, moving from full-time work spanning a lifetime to the complete absence of work on retirement is a major change. This change has social, psychological and financial implications. As well, there is a major impact when employees with caregiving needs or disabilities are asked to stop work entirely when they may be able to continue to contribute to the organization’s productivity on a part-time basis.

The preferred approach is to inclusively design measures such as flexible work hours, mentoring arrangements, part-time work and phased-in retirement. This would allow all employees, including people with disabilities or caregiving needs, to be included in the workplace. Any remaining needs should then be accommodated.

Some employees observe periods of prayer throughout the day or take part in religious observances on a specific day. Other employees may have appointments or needs that they have to attend to for all or part of a day. For example, an employee with a disability may need to go to an appointment with her family doctor, or a worker whose son has a severe disability may need to leave early to provide after-school care. An older worker may need extra rest periods throughout the day.

When these types of Code-needs conflict with the employer's regular work hours or daily routines, an employer has a duty to accommodate the needs, short of undue hardship. Accommodations might include modifying the policy on breaks, offering flexible hours, and/or providing a private area for prayer or breastfeeding. Employees who need breaks for Code-related reasons should normally be given those breaks, and not be asked to forgo normal meal breaks or work extra time to make up for the breaks, unless the employer can show undue hardship.

A common accommodation is to allow for flexible work scheduling for employees, or to allow employees to substitute or reschedule days when their religious beliefs or other Code needs do not permit them to work certain hours. Employers can satisfy their duty to accommodate the Code needs of employees by providing appropriate scheduling changes. In some cases, scheduling changes may provide the fairest and most reasonable form of accommodation.

Example: Seventh Day Adventists and members of the Jewish faith observe a Sabbath from sundown Friday to sundown Saturday. Observant members of these religions cannot work at these times. The employer introduces flexible scheduling to accommodate these employees.

See also Section IV-8f(ii) – “Creed – accommodating employees’ religious needs,” which includes a subsection on requests for paid days off for religious observance.

viii) Stress-related accommodation requests:

Stress by itself is not a Code ground, although it may arise from or be connected to Code grounds such as disability, family status or sex (pregnancy). People experience stress related to positive events, such as weddings, a new home, or a new job. An employee may experience negative stress related to events such as illness, the death of a loved one, domestic problems, or discrimination and harassment at work.

The term "stress" is used by some as a "plain language" way to refer to actual medical conditions, whether physical (such as hypertension) or psychological (such as anxiety or depression). Sometimes stigma about illness or unfamiliarity with particular medical terms may cause people to refer to "stress" instead of disability. These conditions may or may not amount
to disabilities requiring accommodation. In other cases, stress can be a symptom of a disability. It can also lead to a disability or serious health problems, including mental illness or addictions, over time.

In some cases, although stress may not amount to a disability, it may still have to be accommodated because it relates to another Code ground. For example, a woman who is experiencing high levels of stress during pregnancy may be told by her doctor to seek accommodation due to concerns about the effect of the stress on the pregnancy.

Stress commonly arises as a side effect of an inflexible or punitive approach to accommodating an employee’s disability or other Code need. In some cases, this can add to the length of an employee’s absence from work.^[52]

Example: An employee is required to bring in doctor’s notes for each absence, even though his employer already has a doctor’s note to support periodic absences each month. This frustration causes stress. This aggravates his symptoms and increases his absences.

If someone requests accommodation due to "stress," it would make sense for an organization to consider:

Is there a disability-related need for accommodation?
- What are the nature of limitations and restrictions?
Is there another situation requiring accommodation?
- For example, do the stresses relate to pregnancy, care-giving responsibilities or difficulty balancing religious needs with workplace rules?
- How can the employee’s accommodation needs be met?
- What outside supports can the employee also be referred to?
Is further action needed due to another workplace cause of the stress?
- What workplace conditions may be adding to the stress?
- Has the employee been exposed to discrimination and harassment? If so, how have these been handled?

In addition to accommodating individual needs, an inclusive design approach may help an employer revise job requirements to increase job satisfaction and reduce stress for all employees. Section IV-2c) – “Think about stress when designing jobs” describes types of work conditions that have been associated with elevated levels of stress for employees.

The World Health Organization (WHO) indicates that work stress can be reduced through interventions aimed at either increasing an employee’s ability to cope with workplace stressors or reducing the stressors in the workplace. ^[53] Stress management programs have been shown to be effective in improving employees’ mental health and ability to cope. The WHO notes that stress can be reduced by:

changing job tasks or work conditions, for example by providing job enrichment, lower workloads or improvements to work stations such as better ergonomics or reducing noise
clarifying roles and improving social relationships through conflict resolution or communication further reduce stress
a combination of both strategies, targeted to employees and the workplace.

f) Specific concerns related to Code grounds

i) Age (older workers):

Older workers may need accommodation for reasons such as disability and leave related to family status and marital status (for example, the need to care for a family member or an ailing spouse). These obligations exist regardless of the age of the employee. However, due to a relationship between age and disability, these needs may become more apparent as workers, and members of their family, age.

As an older worker makes the transition to retirement, employers may be called on to provide accommodation in the form of flexible hours and conditions of work, part-time arrangements and job sharing. In some cases, retirees may be rehired as consultants or on short-term contracts. There may also be a need for changes to workstations, additional training or other steps to help older workers meet essential job duties. Older workers should be assessed individually to make sure that the accommodation meets their changing needs and capacities.

Example: An older worker finds a physically demanding task challenging. The employer should either assign it to someone else if it is not one of the essential duties of the position, or, if it is an essential duty, seek other ways to accommodate the worker to the point of undue hardship.

ii) Creed – accommodating employees’ religious needs:

A person's religious beliefs may conflict with an onthejob requirement, qualification or practice. Accommodation may mean changing a rule or making an exception to all or part of it for the person concerned. Most commonly, accommodation requests relate to:

dress codes
break policies
recruitment and job applications
flexible scheduling of shifts and work hours
rescheduling and religious leave.

The employer has to accommodate an employee's religious needs when workplace rules or practices have an adverse impact or create conditions that the employee cannot comply with because of a Code ground.

Example: An employer prefers to hire men with short hair. However, certain creeds do not permit men to cut their hair. This would be a discriminatory rule, unless the workplace falls under a legal exception under the Code.

In assessing creed-related accommodation requests, avoid second-guessing the validity of the accommodation request based on personal views of the employee’s religion or the views of others, even experts. This is because the test is whether the exercise of the belief by the employee is sincere and consistent with the religion, rather than whether the employee’s interpretation of the tenets of his or her creed is accurate or shared by others.^[54] See also Section III-3j) – Creed” in the section “Grounds of discrimination: definitions and scope of protection.”

Example: An employee asks for time off work for religious observance. The employer asks around and finds out from expert sources that this is not a requirement of the employee’s faith or creed. It would likely be discriminatory for the employer to deny the accommodation request on this basis.

The right of Sikhs to wear a ceremonial dagger, called a kirpan, is protected under human rights legislation and will not, in most cases, be found to constitute a health and safety risk amounting to undue hardship. In one case, an employer suggested that the complainant wear a plastic replica or stitch the kirpan into its sheath. However, neither of these were viewed as acceptable accommodations by a court. Rather, it was appropriate to expect that the kirpan be hidden, secured and of a reasonable size.

As well, the right to wear religious headgear, such as yarmulkes or turbans, is protected under the Code, subject to the tests for bona fide occupational requirements and the undue hardship standard. Employers should be prepared to design inclusively, accommodate and individually assess health and safety risks against the undue hardship standard where an employee is requesting an exemption from a hard-hat requirement to wear a religious head-covering. It is best to avoid attempts to restrict the wearing of religious headgear based on concerns about image or customer preferences. See also Section IV-7c(ii) – “Dress codes.”

Discrimination may also be found where an employer does not take steps to provide creed-related accommodation, even though it provides accommodation relating to other grounds such as disability.

Requests for paid days off for religious observance: Where employees request days off for religious observance or other Code-related absences, it may be discriminatory for employees to be required to take such days without pay. Many human rights complaints arise from requests for paid days off for days of religious observance other than those provided for as public holidays. Employees are now entitled to eight mandatory public holidays in Ontario under the Employment Standards Act (New Year’s, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day and Boxing Day). An additional day off in February called “Family Day” began in 2008. This schedule is traditionally based on a Christian calendar and two of these days happen to fall on days of Christian religious observance, Good Friday and Christmas. Some employers also provide for a paid day off on a third day of Christian religious observance – Easter Monday.

The Supreme Court of Canada has said that the modern calendar is now to be viewed as secular – in that the statutory public holidays are set as "days of rest" that do not have any particular religious purpose. However, the Supreme Court has also said that this secular calendar has a discriminatory effect on non-Christians. This is because, without accommodation from an employer, non-Christians have to take a day off work and lose a day's pay to observe their holy day. In contrast, the majority of their Christian colleagues have their religious holy days recognized as statutory holidays.^[55]

In the case referred to above, three Jewish teachers needed the day off for Yom Kippur. The employer agreed to give them the day off without pay. They grieved this, arguing that this was discriminatory because it required them to forfeit one day’s pay to observe their religious practices. The Supreme Court of Canada agreed. While the loss of a day’s pay would have been
significant for the teachers, who were paid based on 200 days of work per year, there was no evidence that having to pay for the day off would impose an unreasonable financial burden on the employer.

The Commission’s position is that employees should receive paid religious days to the extent of the religious Christian days that are also statutory holidays, unless the employer can show undue hardship. ^[56] The employee would be entitled to two paid holidays if the workplace only observes the Christian holidays of Good Friday and Christmas. The employee would be entitled to one additional paid day off if the workplace provides paid time off on Easter Monday.

The question is then what employers are expected to do to handle requests for additional days off from employees based on creed. It is clear that the employer must accommodate to the point of undue hardship. This being said, there is not only one right way that this can be done. The approach must be individualized to the circumstances and needs of both the employer and employee, but there are some options that could be considered. Measures might include additional paid leave days such as floating days or compassionate leave days, if these exist under company policy or collective agreements. Other options include unpaid leave or scheduling changes.

The Employment Standards Act states that where an employee agrees in writing, the employee can work through a statutory public holiday at regular rates (that is, without receiving the statutory holiday premium) and then receive another paid day off in lieu.

Another option might be to have an employee work an equal number of hours on another day that is not regularly scheduled (for example, a Saturday or Sunday) and then receive a paid day off in lieu. Again, this could work provided there is productive work for the employee to do on the day that was not regularly scheduled.

It may be possible for the employee to accrue "banked" time by making changes to his or her existing schedule, and to allow the employee to use that "banked" time to take paid days for religious observances. For example, the employee could work a "compressed work week" (by taking longer days, shorter lunches, and so on) and then use the extra time to take paid days off.
In one case, the Court of Appeal stated that an employer had met its duty to accommodate when it allowed its employee to bank the time accumulated through a compressed work week schedule and to use this for his additional holy days.^[57]

Example: An employer’s policy provided for two paid days and allowed for a compressed work week – normally, an employee would work a half hour extra and take a day off within the three weeks in which it was earned. The employee, a member of the Worldwide Church of God, needed 11 holy days and the employer agreed that he could bank his compressed work-week hours and use them at will. The employer has met its duty to accommodate.

In summary, a good practice is for an employer to give two or three paid days off for religious observances, and to be practical and flexible in looking for solutions when employees request additional days off, subject to the undue hardship standard.

In some cases, scheduling changes may trigger issues in a unionized workplace and a union may take the position that this interferes with seniority. As was noted earlier, the Code takes priority over collective agreements and a union can be liable for impeding an employer’s attempt to be flexible and accommodate.^[58]

iii) Sex – accommodating the needs of pregnant women:

Accommodation needs may arise from a woman’s pregnancy, including fertility treatments, miscarriage and abortion, pregnancy complications, recovery from childbirth and breastfeeding. It is discriminatory for an employer not to accommodate pregnancy-related needs.^[59]

Example: Shortly after an employee starts work as a sales associate, she becomes pregnant. She experiences nausea and fatigue. While she is able to complete her job duties, she needs to sit down to rest at times. Because of problems with her pregnancy, she takes some time off work and reduces the length of her shift. The employee’s sales fall sharply and the employer fires her. This is viewed as a discriminatory termination because the employer has not considered the potential impact of her pregnancy and her reduced hours on her performance.

Special needs during pre-natal and post-natal periods, including breastfeeding, can be accommodated, short of undue hardship, in a variety of ways, including:

a requested temporary relocation to another work station or location
re-assignment of duties
providing a flexible work schedule to accommodate medical appointments, including pre-natal and post-natal checkups and treatment for infertility
allowing breaks as necessary – employees who need breaks for pumping or breastfeeding or for more frequent use of the washroom while pregnant should not have their time docked, be penalized, or be expected to make up the time unless the employer can show undue hardship
providing a supportive environment for a woman who is breast-feeding. This may mean allowing an employee’s caregiver to bring the baby into the workplace to be fed, making scheduling changes to permit time to express milk or breastfeed at work, and providing a comfortable, dignified and appropriate area so that a woman can breastfeed, or express and store breast milk at work (for example, an area that assures a degree of privacy). In some special cases, it may involve permitting a leave of absence.

When a rule has an adverse impact on women who are or may become pregnant, the rule may violate their rights under the Code. Accommodation must be provided, short of undue hardship.

Example: A police officer requested light duties for the last stages of her pregnancy. The police force had a policy of not providing a modified work program and so the employee’s request for light duties was denied. Instead, she was told that she could take a part-time civilian position at a much lower salary. This meant that the officer would have to resign from the force. The rule of "no modified duties" was applied to all officers but it clearly impacted on pregnant women who are at higher risk during the latter stages of their pregnancy. The accommodation offered was unreasonable because a male officer who was unable to work because of pending charges was given lighter duties. This was found to be discrimination because of sex.

In this example, the policy was applied to all police officers and, on its face, did not discriminate. However, when the policy was applied, it negatively affected pregnant police officers and amounted to discrimination based on sex.

Refusing to assign alternate duties to pregnant employees when male employees are given opportunities to do alternate duties because of health and other reasons may be found to be discriminatory.

Pregnancy-related leave: Making a pregnant employee take a leave of absence, without any objective evidence of risk to that employee, may be discriminatory. An employer cannot arbitrarily decide that a pregnant employee should take a leave of absence as an accommodation measure, without considering, and consulting with the employee on, other options for dealing with a situation requiring accommodation. The most appropriate accommodation should be implemented, subject to the undue hardship standard.

If a pregnant employee produces proof that she must be away from work for health-related reasons, at whatever stage this might be during the pregnancy, she cannot be treated differently or adversely from other employees who are also away from work for other "health-related reasons."

“Health” includes:

the woman’s physical and psychological health
the health, well-being, growth and development of the fetus
a woman’s ability to function as a social being, interacting with her family, employer and significant others.

Pregnancy leave is used for bonding and nurturing. As well, different women have different medical and physiological needs after childbirth, depending on their circumstances, and the time needed to recover from childbirth varies. Because women respond differently to pregnancy, requests for health-related absences should be assessed and granted on an individual basis. Pregnant employees who need leave for health-related pregnancy concerns should follow the proof-of-claim procedures of the employer's benefit plan to show that the health-related absence is valid.

An employee may need time off before or after her pregnancy, and/or parental leave for pregnancy-related health reasons. In such cases, the employee has access to health benefits under a workplace sick or disability plan. However, the decision to take short- or long-term disability leave may affect the right to take pregnancy and/or parental leave. See also Section IV-7j(iv) – “Pregnancy-related benefits (sex and/or disability).” If there is no workplace sick plan or personal insurance plan, an employee may go on an unpaid leave of absence or use vacation time for health-related reasons, including the employee’s physical and mental health or the health and well-being of the fetus or child.

When an employee is on sick leave, either while pregnant or while a premature infant is in the hospital, before starting maternity and parental leave an employer must take this into account when determining how long to hold open the employee’s position. It is not acceptable for the employer to rely on an arbitrary cut-off date of one year from the date the employee left the workplace. The employer is expected to provide accommodation to the point of undue hardship as it would for an employee who is off work for a lengthy period of time due to disability.

Example: An employee with an expected due date of January 1, 2006 goes off work on September 1, 2005 because of pregnancy complications. She receives workplace health benefits while she is on bed-rest for one month and for the three months that her baby is in hospital following his premature birth in October 2005. She starts her maternity leave, and receipt of Employment Insurance (EI) benefits, on February 1, 2006. She contacts her employer to arrange her return to work for February 1, 2007 when her EI benefits and parental leave will stop. Her employer says that she no longer has a job as she has been off for more than a year. The employee files a complaint alleging discrimination based on sex and family status. The employer would need to show that
filling the job on a temporary basis and giving the job back to this employee on her return would amount to undue hardship.

iv) Accommodating the needs of employees with family responsibilities:

The duty to accommodate will only arise where a genuine case of discrimination on the basis of family status has been shown. In terms of family status, accommodation is usually associated with caregiving needs.

In employment, accommodation is central to overcoming the disadvantages experienced by caregivers and is usually neither burdensome nor costly; it is instead a matter of flexibility. A flexible and accommodating approach is ultimately a significant advantage to employers in attracting and keeping good employees.

Generally, the duty to accommodate will only become an issue in cases where rules, policies, practices, or institutional structures, assumptions or culture are adding to, or leading to, the disadvantage of persons identified by a particular family status. In these cases, the employer will need to show that the requirement is bona fide and that accommodation has been incorporated into the test and provided to the point of undue hardship.

To determine whether a duty to accommodate has arisen, consider the following:

the nature of the caregiving responsibility, and the conflict between that responsibility and the organization’s rules, requirements, standards, processes or other factors
- the more major the caregiving obligation at stake and the more serious the interference of that rule, requirement or factor, the more likely it is that a duty to accommodate will arise
the systemic barriers faced by caregivers, including effects based on overlapping grounds like disability, age, gender, sexual orientation, race and race-related grounds, and marital status
- consider what systemic barriers exist in the workplace, including the representation of persons with significant caregiving responsibilities, the organizational culture, and the inclusiveness of its policies, procedures and decision-making practices
the availability and adequacy of social supports for caregiving needs
- caregivers should not have to place their loved ones into situations of significant risk of physical, emotional or psychological harm to meet the needs of their employer.

An employer does not need to provide more than the person needs to meet the actual needs related to family status. For example, if rescheduling work hours would enable an employee to take care of an important caregiving responsibility, the employer does not need to provide a paid day off.

It will be harder for an organization to justify not accommodating individual requests for flexibility if it has not taken steps to investigate and implement polices and practices that support and include caregivers. Employers should take steps to make sure that the workplace is “family friendly,” has a positive work-life culture and is inclusive of persons who have caregiving responsibilities. Consider:

a visible, senior-level statement of continuing support for an inclusive, family-friendly workplace
education and training programs for management and staff on the requirements of the Code related to family status
developing an organizational strategy for creating an inclusive workplace
programs and policies that recognize and support the range and diversity of contemporary Canadian families
providing for flexibility and options available to all workers such as flexible hours, compressed work weeks, reduced hours, job sharing, leaves of absence, childcare and/or eldercare services, employee assistance programs and telework programs.

For more information on accommodation and family status, see the Commission’s Policy and Guidelines on Discrimination because of Family Status.

^[48] Parry Sound, supra note 28.
^[49] Renaud, supra note 29.
^[50] Meiorin, supra note 6 at para. 65 and Grismer, supra note 7.
^[51] See for example, Datt v. McDonald’s Restaurants (No. 3), 2007 B.C.H.R.T. 324 (Datt).
^[52] This example is based, in part, on the trial and appeal decisions in Keays v. Honda Canada Inc. (2006), 274 D.L.R. (4th) 107 at para. 8 (Ont. C.A.), leave to appeal to S.C.C. granted, [2006] S.C.C.A. No. 470 (Keays) at para. 8. It should be noted, however, that the Court of Appeal decision, and the discussion of the "note policy" was overturned by the Supreme Court of Canada which found that on the facts of that case the requirement to provide notes was part of a specific program to maintain regular contact with the family doctor in order to support treatment, which was itself a form of accommodation being determined in consultation with doctors: Honda Canada Inc. v. Keays, 2008 SCC 39 at para 71. The Supreme Court of Canada’s decision is available online at http://scc.lexum.umontreal.ca/en/index.html.
^[53]World Health Organization, "Prevention of Mental Disorders: Effective Interventions and Policy Options, Summary Report," online: www.who.int/mental_health/evidence/en/prevention_of_mental_disorders_sr…
^[54] Amselem, supra note 20.
^[55] Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525 (Chambly).
^[56] Ontario Human Rights Commission, Policy and Guidelines on Creed and the Accommodation of Religious Observance, section 7.4.
^[57] This approach was used in Ontario (Ministry of Community and Social Services) v. Grievance Settlement Board (2000), 50 O.R. (3d) 560 (Ont. C.A.).
^[58] Renaud, supra note 29.
^[59] Brooks, supra note 23.

IV. Human rights issues at all stages in employment