An employer’s duty to accommodate often comes up in discussions of workplace human rights. But what is the duty to accommodate and what does it mean for employers and employees?
Provincially-regulated workplaces in BC are governed by the rules set out in the BC Human Rights Code. In particular, Section 13 of the Code describes employers’ obligation not to discriminate against workers based on any of the following protected characteristics:
Mental and physical ability
If an employee is treated differently based on one or more protected characteristics, this is considered discrmination. For example, a female employee may experience discrimination on the basis of sex, if she consistently receives more negative treatment or harsher criticism than her male colleagues.
The duty to accommodate, then, is the employer’s responsibility to reasonably accommodate employees who may have different needs based on their characteristics.
What Does Accommodation Look Like?
What accommodation looks like can vary depending on the size and means of the organization, and on the nature of the job. Accommodations must be made to the point of undue hardship, which can also vary depending on the circumstances and facts of each case.
One very common source of undue hardship is the financial cost to the employer.
Accommodating someone with a physical disability, for example, may require the installation of a building ramp, an elevator, or specific furniture, which not every organization can afford. A small organization renting a second-floor office, in a building without an elevator, may not be able to reasonably accommodate a prospective employee who uses a wheelchair.
Accommodation can also look like an adjustment in scheduling or hours, for example to accommodate someone who needs more time off work as a result of a mental health concern. In a case like this, an accommodation could also mean placing a person in an alternate position that is better suited to their needs, limitations, or restrictions. Again, such an accommodation might be easier in a large organization with many different roles.
It’s important to remember that the duty to accommodate is a duty to provide reasonable accommodation. It’s not expected to be perfect, and an organization does not need to provide an employee requiring an accommodation with the exact same duties, responsibilities, and compensation. Keep in mind that employees should be compensated according to the work performed, so if the work performed is less demanding or requires fewer hours, then compensation may be reduced in accordance.
Much of this applies to employees with physical or mental disabilities – it’s unlikely that a difference in, for example, gender identity, would require any particular alteration to the nature of an employee’s job.
Bona Fide Occupational Requirements
Many jobs require certain physical abilities or mental characteristics on the part of the worker. Construction workers must generally be able to lift heavy objects and perform physical labour. Line cooks should be comfortable being on their feet for the majority of the day. Paramedics should not have an aversion to the sight of blood.
If the job does have a bona fide occupational requirement, then it may be genuinely impossible to accommodate an employee who does not meet that requirement. Reasonable accommodation is not only a financial concern – the accommodation must be safe and appropriate for all employees in a given workplace. In a physically demanding workplace, accommodating an employee without the same physical abilities may be an undue hardship for other workers.
What are the Responsibilities of Employees and Employers?
Typically, if an employee has a need for accommodation, it is their responsibility to bring that forth to the employer. However, the employer also has a duty to make inquiries into the need of an accommodation if they’ve been put on notice by the actions or circumstances of an employee.
For something like a physical disability or a mental health issue, we have seen that input from the physician or psychiatrist treating the employee can be helpful for employers in determining what type of accommodation is needed. But this can only occur with the employee’s consent, and any information shared must only be that which is relevant to the employee’s ability to perform their work.
Employees should be cognizant of the fact that compensation reflects the work performed. If they are performing less work overall or work that is less physically or mentally demanding, then it is reasonable for them to be compensated at a lower rate than other employees.
When setting out bona fide occupational requirements, an organization must be able to prove that a requirement or standard is:
Connected to the requirements of the job
Established in good faith
Reasonably necessary to perform the job
As an employer, you should be able to demonstrate or at least clearly explain why a certain requirement exists. It’s important for employers to take time to consider what skills or characteristics are actually necessary or essential for an employee to possess in order to be able to perform the duties of a particular position.
Are you an employer wondering how to fairly accommodate all employees? Are you an employee with a concern about workplace accommodation?
Contact us today – Ascent is here to help.