Most organizations have their own policies and procedures related to accommodation. All of these should comply with relevant human rights legislation.
Before beginning the accommodation process, review current legislation, and organizational policies and procedures. Always get clarification about regulation in your jurisdiction. Do this before making assumptions about the meaning of any policies.
The information shared below is based on material from Ontario Human Rights Commission, except as otherwise noted.
What is accommodation?
The definition of accommodation can vary across Canada, with the Ontario Human Rights Commission’s Policy Statement on the duty to accommodate defining it as follows:
Accommodation means making adjustments to policies, rules, requirements and/or the built environment to ensure that people with Code-related needs have equal opportunities, access and benefits. Accommodation is necessary to address barriers in society that would otherwise prevent people from fully taking part in, and contributing to, the community.
Most human rights agencies in Canada have similar approaches to the duty to accommodate, and links to all provincial and territorial human rights agencies are included at the end of this article.
Accommodation does not mean lowering essential qualification standards, which are the skills or attributes that one has to meet for a particular job, to graduate from a class or program, etc. Accommodation is a shared responsibility. Everyone involved, including the person asking for accommodation, should cooperate in the process, share relevant information, and jointly explore accommodation solutions.
The Human Rights Code of Ontario (the Code) prohibits certain types of discrimination, including discrimination that results from requirements, qualifications or factors that may appear neutral but that have an adverse affect on specific groups of people. The Code allows for an organization to show that a requirement, qualification or factor that results in prohibited discrimination is nevertheless reasonable and bona fide (legitimate) in the circumstances. However, to do this, the organization must show that the needs of the person cannot be accommodated without undue hardship. (See the Ontario Human Rights Commission for more information.)
The Policy statement on the duty to accommodate under the Ontario Human Rights Code states:
Human rights would be functionally meaningless if the needs of Code-protected groups were not taken into account through the process of accommodation. By making adjustments to the standard way of doing things, organizations are fulfilling their legal responsibility to remove the barriers that prevent people covered by the Code from fully taking part in, and contributing to the community.
Legal framework related to the duty to accommodate
What follows are some of the requirements described by the Charter of Rights and Freedoms and Human Rights Codes. There are different provincial, territorial, and federal Human Rights Codes and the obligations of each are generally similar. Certain provinces, like Ontario and Manitoba, also have accessibility legislation that you should be familiar with and that may have extra requirements related to accommodation. Get professional legal advice on specific obligations that may apply in your province or territory or to your industry.
In general:
- Everyone has the right to equal treatment in employment – No one can be discriminated against on the basis of actual or perceived disability. Equal treatment does not mean the same treatment. The duty to accommodate is explained by the Canadian Human Rights Commission.
- Terms when explaining the duty to accommodate can be quite broad – Following are some of the terms and language you may hear or read related to the duty to accommodate:
- Employer – Can include unions, volunteer boards and contractors
- Employment – Can include activities such as hiring, recruiting, training, transfers, promotions, employee benefits, pay, discipline and performance evaluation.
- Disability – Generally includes mental illness, mental disorder, and substance abuse.
- Discriminatory treatment – Includes not hiring someone because it’s assumed, based on stereotypes, they can’t do the job. It can also include preventing someone from taking part in work activities due to a baseless belief that the disability wouldn’t allow them to be successful. See What is discrimination? on the Canadian Human Rights Commission's website.
- Reasonable accommodation – Allows employees to perform the essential duties of the job. The types of accommodation that may be requested can vary. If two solutions will both work, but one is more practical, it should be considered first. See Accommodation strategies for ideas.
- Undue hardship – Some Human Rights Codes share that the length an employer must go in considering accommodations, is to the point of undue hardship. This means that some hardship on the part of the employer is considered acceptable. Under the Canadian Human Rights Act, an employer can claim undue hardship when adjustments would cost too much, or create risks to health or safety. There must be evidence to support undue hardship.
See Discrimination prevention and inclusivity for situations where there’s no known intention to harm, but the actions of an employer were perceived by the employees as discriminatory. Alternative strategies are also offered.
The duty to inquire
Employers may have a duty to inquire in some circumstances due to case law. It requires the employer to ask the employee if there’s a need for assistance or accommodation when the employer notices or should reasonably have noticed changes in the employees’ behaviour or performance that could indicate they’re experiencing a disability or condition that could be accommodated.
The employer can do this by asking the employee, “Could there be an underlying health condition impacting your ability to be successful at work?” If they say “Yes” you can begin the process of accommodation. If they say “No” you can focus on performance management.
The duty to inquire typically happens during conversations about the employee’s performance, but it must happen before ever taking steps towards discipline or any action that negatively impacts the employee, such as decreasing opportunities for career advancement.
Keep in mind that the employee may not have insight into their condition or disability and therefore may not share that they have an underlying health condition. This conversation may motivate self-reflection. If the employee says that they don’t have an underlying health condition that’s impacting their ability to be successful at work, encourage them to come to you if this should change in the future and remind them of the accommodation support available to them.
What are some of the relevant laws in Canada?
There are various statutes prohibiting discrimination against persons. Discrimination can be based on certain characteristics such as gender expression, family status or disability.
These include the following:
- Canadian Charter of Rights and Freedoms. This applies to government action and legislation.
- Canadian Human Rights Act. This applies to federally regulated employers. Some of these include the federal government, Crown corporations, Canada Post, chartered banks, and national airlines.
- Provincial and Territorial Human Rights Agencies. This applies to provincially regulated employers.
- Employment Equity Act. This applies to federally regulated employers. laws-lois.justice.gc.ca/eng/acts/E-5.401/
- Occupational Health and Safety. Every province has its own legislation governing occupational health and safety. It focuses on identifying hazards, mitigating risks and protecting workers from harm. Canadian Centre for Occupational Health and Safety. provides more information.
- Employment Standards. This type of legislation may include references to hours of work, discipline for absenteeism, or employee benefits. It can also include entitlements to leave for pregnancy, childbirth or adoption, or family emergency. Search for the applicable employment standards for your jurisdiction. (Note that the National Standard of Canada for Psychological Health and Safety in the Workplace is voluntary, rather than legislated.)
- Worker's Compensation. This legislation includes public insurance plans that cover most work injuries and illnesses. Refer to the Association of Worker's Compensation Boards of Canada (AWCBC) for more information about what is covered in each province or territory. AWCBC also offers information about when compensation may be given for work-related or occupational stress.
- Accessibility. Accessibility is about removing barriers that prevent persons with disabilities from fully participating in the workforce. A barrier is anything that prevents a person with a disability from fully participating in all aspects of society. This can include a physical or architectural barrier, any information or communications barrier, an attitudinal barrier, a technological barrier, or a policy or practice. Some, but not all provinces require a systemic strategy for barrier identification, removal and prevention.
Legalistic accommodation versus organic accommodation
- The law has much to say about accommodation. It’s better to avoid legal battles about whether, when or to what extent a person’s needs, interests or rights should be the basis for adjusting working conditions or environments.
- It may be possible to avoid some legal complaints by having policies and practices in place that foster a culture of fairness. In this, accommodation is seen as a responsibility borne by all workplace actors. This type of culturally embedded accommodation can be called “organic”, as opposed to “legalistic”.
- Organic accommodation is a characteristic of a culture where it’s a norm for workers to be aware of how they affect one another. They would have basic understandings of one another’s interests, needs and rights. This awareness and understanding contributes to forms of problem solving in accommodation situations. It’s then more likely to lead to fair outcomes for everyone involved. This approach is based on the observation that accommodation is a shared responsibility. It affects not only the people to be accommodated but also those in their spheres of influence.
- For example, accommodations often result in changing the way work is shared. In organic accommodation this is more likely to be seen as equitable by all parties. In other situations, the law has been the reason for addressing the needs, interests or rights of a particular individual.
Provincial and Territorial Human Rights Agencies
- Alberta Human Rights and Citizenship Commission
- British Columbia Human Rights Tribunal
- Manitoba Human Rights Commission
- New Brunswick Human Rights Commission
- Newfoundland and Labrador Human Rights Commission
- Northwest Territories Human Rights Commission
- Nova Scotia Human Rights Commission
- Ontario Human Rights Commission
- Prince Edward Island Human Rights Commission
- Québec Human Rights Commission
- Saskatchewan Human Rights Commission
- Yukon Human Rights Commission
- Other references to disability policy in Canada
Please note that the information provided in this section is for the purposes of general information and is not a substitute for obtaining legal advice.
Additional resources
- Union support for accommodation. Strategies for union reps to help workers with mental or physical disabilities. Support from union representatives can be critical for ongoing success on the job.
- Specific areas of concern. A framework to help your organization prevent discrimination, harassment, sexual harassment, bullying, trauma, burnout and negative impacts to employee health and well-being.
- Human Rights at Work. The third edition of Human Rights at Work is available to review online. Included with permission of the Ontario Human Rights Commission.
- What is a "reasonable accommodation"? A description of the legislative requirements of "reasonable" accommodation. Information courtesy of Mental Health Works.