Limits on the Duty to Accommodate
The Supreme Court of Canada has confirmed that employers have a legal obligation to take reasonable steps to accommodate an employee’s individual needs. Accommodation requires an employer to balance the needs of an individual with the needs of the employer’s business. This may require the employer to make changes to certain rules, policies, workplace cultures and physical environments to ensure an individual is not negatively affected because of that person’s mental or physical disability, religion, gender or any other protected ground.
While the duty to accommodate is a significant and broad legal duty there are circumstances where an employer is not able nor required to accommodate.
Once an employee has shown the rule or requirement appears discriminatory, an employer can justify its actions where the policy, rule or requirement in place is a bona fide occupational requirement. To make such a defence, the employer must prove that, on a balance of probabilities, (1) the rule was adopted for a purpose that is rationally connected to job performance, (2) the rule was adopted in an honest and good faith belief that the rule is necessary for the fulfillment of that legitimate purpose and (3) the rule is reasonably necessary to accomplish that legitimate purpose.
Establishing that a rule is reasonably necessary will require the employer to demonstrate that it is not possible to accommodate the employee without the employer suffering undue hardship or that it has reasonably accommodated the employee. To show undue hardship, the employer must demonstrate both that failure to enforce that rule, or any accommodation of that rule would amount to a significant interference with the employer’s business operations. Although the interference can take many different forms, minor cost and inconvenience are likely not sufficient to establish undue hardship, the interference must be substantial in nature.
Should the employer successfully demonstrate that the policy or requirement in place is a bona fide occupational requirement and accommodating an employee (for example, by amending or not enforcing that particular policy or rule) would result in undue hardship the employer will not be required to accommodate the employee.
Another circumstance where the legal duty to accommodate may not exist is when the employer is not aware that accommodation is required. In most cases, employees must communicate their need for accommodation to their employer. Employers are not responsible for failing to accommodate a need that they did not or could not have reasonably known exists. However, employers should be cautious in assuming that no accommodation is required on the basis that they had no knowledge of the need to accommodate. There are instances when: (1) an employee’s condition may prevent them from identifying and disclosing their need for accommodation; and, (2) where the employer (based on the circumstances) has a duty to inquire. As such, it is important that employers make meaningful efforts to communicate with their employees prior to taking disciplinary action.
Employers are also not required to meet unreasonable employee demands in the accommodation process. If an employee is refusing to cooperate in the accommodation process or is refusing reasonable accommodations the employer may be released of their obligation to accommodate.
The foregoing represents a summary of general legal principles and should not be relied upon as legal advice or a substitute for legal advice. The process of addressing potential discrimination and accommodation is a highly-fact intensive exercise and requires unique tailoring of employer approaches to specific circumstances. If you are facing a potential discrimination situation we encourage you to seek legal advice. McLennan Ross has a significant number of lawyers practicing in the areas of Employment & Labour Law and Human Rights who would be pleased to assist.