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.
What is accommodation?
The definition of accommodation can vary across Canada. The Ontario Human Rights Commission’s Policy Statement on the duty to accommodate shares guidance for employers. The information shared below, comes from legislation in Ontario. 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 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.
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 Code prohibits discrimination that results from requirements, qualifications or factors that may appear neutral but that have an adverse effect on people identified by Code grounds. The Code provides for an organization to show that a requirement, qualification or factor that results in discrimination is nevertheless reasonable and bona fide (legitimate). However, to do this, the organization must show that the needs of the person cannot be accommodated without undue hardship. From the Ontario Human Rights Commission.
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. The obligations of each are generally similar. Certain provinces, like Ontario and Manitoba, have accessibility legislation. This 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 work, but one is more practical, it should be considered. See Accommodation strategies for ideas.
- Undue hardship – Some Human Rights Codes share 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.
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 disabilities that may apply to employers in Canada.
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 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 and mental illness. 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.
One legislative approach is the Accessibility for Ontarians with Disability Act, 2005, which requires a systemic strategy to create and sustain barrier-free workspaces. Legislation requiring barrier identification, removal, and prevention exists only in some provinces.
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 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’s 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.