Monday, November 2, 2020

Asking for Accommodation

What do I need to know?

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Accommodation is a big word to describe a process where adjustments are made to your work duties or work environment because of some kind of limitation that you have.

Accommodation is a legal term that comes with careful processes to ensure that you are not discriminated against (for example, because of a disability) and your employer can still carry out operations without undue hardship.

The Human Rights Code prohibits an employer from discriminating against a person based on physical or mental disability, family status, religious belief, gender identity, and many other characteristics.

It’s important for you to know that when you ask for accommodation, it will trigger this careful process. Normally, your medical information is protected by privacy law. But when you ask for accommodation, your employer must ask for detailed medical information so that it can correctly accommodate you without injuring you.

For example, if you have a back injury, you could be at risk for further injury if your employer incorrectly accommodates you for being exempt from lifting, standing, or bending.

It is also important for your employer to verify that your request for accommodation is valid, and not an excuse to get out of unpleasant job duties or tasks you would prefer not to do. In a unionized workplace, the accommodation process should involve the employer, the employee, and the union.

Employer’s Responsibilities

• Ask for necessary medical information. (The employer is entitled to an understanding of the general nature of the illness, not the diagnosis.)

• Explore options that suit the employee’s needs up to the point of undue hardship.

• Exploring the options includes four steps:

Can the employee perform current job as it exists?
If not, can the job be modified?
If not, is there another suitable job?
If not, can another job be modified?

Employee’s Responsibilities

• Comply with requests to provide medical information about the condition he or she is asking to have accommodated, including from a specialist.

• Keep open communication with the employer and union.

Union’s Responsibilities

• Protect the process and the collective agreement.

• Assist in communication. For example, it would be reckless for the union to advocate for accommodation of a back injury with a highly confrontational employee, without considering the mental health of the employee and the impact on the collective agreement and workplace morale.

• Educate the employee about the limitations of the process.

What Is Undue Hardship?

Five factors apply when considering if undue hardship has been reached in attempting to accommodate an employee:

Health and safety – An expert in safety may be required if claiming unsafe for employee to work
Financial cost – Must provide concrete, objective evidence of costs
Disruption of the collective agreement
Employee morale
Size of the employer

Throughout the investigation process, evidence provided must not be anecdotal or impressionistic but based on actual evidence as much as possible. Accommodation is not ideal. The employer may have to endure some hardship, and the employee may also end up with changes to their tasks and workplace that they do not prefer.

Worst-Case Scenario

If an employer cannot accommodate an employee, it is possible that the employee may have to take an extended absence with hopes of being able to return to their regular duties at some point. It is also possible that the employer/employee contract could become “frustrated” so that continued employment is no longer possible.

Sometimes, it might look like a return to work might not be possible. These questions must be answered by a medical prognosis, including the timeline indicated by the medical professional for updates on the employee’s condition.

Employers cannot harass an employee by constantly asking for updates and then trying to terminate them if they don’t comply. The medical professional will indicate when the patient needs to be seen next, and that is when the next update should be sent to the employer, and not before. If the employee cannot return, they are entitled to termination and severance pay.

If conflict arises, it is everyone’s responsibility to communicate based on medical advice and not on speculation or stigma. We must take a view of the whole person who is injured or ill, and demonstrate compassion for their total accommodation needs (including how we communicate with them), and respect the roles of everyone in the process.

Asking for Accommodation

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