In previous posts, here and here, I talked about an employer's duty to accommodate. Specifically, I detailed how there is both a proactive and reactive element to the duty. In this post, I will discuss the two aspects of an employer's duty to accommodate on the reactive side of the equation.
An employer's responsibilities in responding or "reacting" to a request for accommodation in the workplace fall into two categories: procedural and substantive.
Procedural component to the duty to accommodate
An employer must ensure proper steps are in place within its organization to enable a thorough investigation and assessment of all requests for accommodation. This includes instances where an employee actually makes a request for accommodation and also situations where an employer suspects that an employee might need accommodation (for example, where an employer believes, due to recent behavioural changes in one of its employees, that the employee might be grappling with a mental disability).
In relation to this component of the duty to accommodate, I always recommend that employers have in place written policies and procedures that detail how employees are to bring requests for accommodation to the employer's attention and how the employer is going to respond to that request. In a subsequent post I will discuss what a policy of this nature might look like.
For now, it is important to note that the inability of an employer to prove that it actively examined all possible means of accommodating an employee within its organization -- in other words, a failure to show it had an appropriate process in place -- will be sufficient for a human rights commission to attribute liability to the employer. This is the case even if the Commission ultimately determines that the employer could not have accommodated the employee. In recent discussions I have had with the Executive Director of the Manitoba Human Rights Commission, Dianna Scarth, she has noted that the Commission deals with a large number of cases each year where employers are found to violate the Manitoba Human Rights Code because of a failure to have a proper process in place to assess workplace accommodations. I suspect the Manitoba Commission's experience is not unusual.
Substantive component to the duty to accommodate
Once it has engaged its process and determined whether accommodation is possible, an employer then must do one of two things. It either has to ensure appropriate accommodation is implemented in a timely manner or advise the employee that accommodation is not possible and provide details to justify such a decision. Remember going back to yesterday's post, that it is only when an employer has reached undue hardship that it can justify denying accommodation. A claim of undue hardship has to be backed up by actual evidence.
Comments