Duty to Accommodate: Employer Responsibilities

by Thom Tracy

2 min read

Passed by Parliament in 1977, the Canadian Human Rights Act (CHRA) deals with all types of discrimination. Section Two of the act looks at eleven principles or bases of discrimination. This section also specifically outlines the steps and lengths that employers such as small business owners are responsible for taking to avoid discriminating against employees.

Prohibited Discrimination

As an employer, you must be careful when hiring and firing employees, neither of which can occur because of one or more of the following prohibited reasons. You also need to be willing to make accommodations for workers with special needs because of one or more of these characteristics. Under the CHRA, the eleven prohibited grounds for discrimination are nation of origin, colour, religion, race, sex, age, sexual orientation, family status, marital status, disability, and conviction of an offence that has been pardoned.

Duty to accommodate, as outlined by the CHRA, is generally applied in situations where an employee has a disability, but accommodations must be made for the other ten grounds as well. This mandate was established to promote equality and to make the workplace more harmonious.

Examples where the duty to accommodate may come into play include an employee who becomes injured or handicapped, either on or off duty; an employee who converts to a religion, or new religion, that places restrictions on what they can and cannot do; or a worker who must change their hours or work schedule because of pregnancy or a medical condition.

Many employees may feel singled out or embarrassed to ask for accommodations. As an employer, it is your responsibility to recognize changes in a worker’s performance that may be an indication that an accommodation needs to be made. It is the employee’s responsibility to provide all necessary medical documentation or other formal paperwork that indicates the need for an accommodation to be made. In the case of religion, it is important to focus only on the actual limitations the worker faces and the specific accommodations that must be made to accommodate their religious beliefs. It is also vital to adhere to all privacy laws regarding the personal information of employees. Any records you request and observe, and the information they contain, must stay within the strictest of confidence and should be viewed only by necessary parties, such as yourself and a member of your human resources department.

Undue Hardship Exception

You are only required to accommodate your employees up to the level of undue hardship. Unfortunately, there isn’t a set-in-stone formula to calculate that level. To determine undue hardship, you must consider things like cost, safety, health, and the operational requirements of the work environment. With all of this in mind, it is still your responsibility to make every effort to accommodate all workers, and to regularly document the steps you take to do so. Note that you may not make assumptions about what a worker can or cannot do. Canadian law requires you to consult with the employee and provide every opportunity for an employee to fulfill their duties with the accommodations that you are able to provide.

References & Resources

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