Searching for an accommodated position: what's the process?

Last month, I was fortunate to have been asked to speak at the Current Issues in Disability Management Conference put on by the Rehabilitation Return to Work Partnership in Winnipeg.  It was a terrific opportunity to present to a group of people who are very knowledgeable in the area of accommodating disability in the workplace.

Following my presentation, I happened to get asked virtually the same question by two of the conference's attendees and so I decided that it would be worth a blog post to cover what I was asked.  Essentially it was this: 

when exploring how to accommodate a disabled employee, what process is an employer required to follow?

More particularly, discussion occurred around whether an employer just has to look at existing positions in its workplace in order to determine what might be available for an employee requiring accommodation due to disability or whether the employer has to go beyond that.

The general answer to this question flows from an Ontario Labour Arbitration case known as Ottawa-Carleton District School Board v. O.S.S.T.F..  The decision endorses a passage from an article by Professor Michael Lynk entitled Disability and the Duty to Accommodate: An Arbitrator's Perspective.  In that article, Prof. Lynk states that the duty to accommodate disability requires an employer to go beyond simply looking at whether an employee can be accommodated in a position already in existence in the workplace.  In particular, Prof. Lynk states (as noted in the Ottawa-Carleton decision):

"....the law obliges an employer to determine whether existing positions can be adjusted, adapted or modified, and whether there are other positions in the workplace that might be appropriate. This responsibility entails an assessment of all reasonable alternatives. To prove that its accommodation efforts were serious and conscientious, an employer is required to engage in a four-step process, which involves (1) determining if the employee can perform his or her existing job as it is; (2) if not, determining if he or she can perform his or her existing job in a modified or “re-bundled” form; (3) if not, determin­ing if he or she can perform another job in its existing form; and (4) if not, determining if her or she can perform another job in a modified or re-bundled form."

In keeping with this decision, I advise employers to do the following when assessing their ability to accommodate a disabled employee:

1. Ensure they have up-to-date job descriptions which accurately detail the duties of all positions in the workplace.  Operating on outdated job descriptions can impact an employer's ability to find accommodation and, ultimately, impair the ability to argue it has satisfied its duty to accommodate;
2. Review the employee's current job and ask:
   • What are the essential duties and non-essential duties of the current job?
   • Of the non-essential duties identified, can any of these duties be removed or reassigned?
   • Of the essential duties identified, what can the employee do/not do?
   •   What can be done to assist the employee perform the current job?:
     • can modifications be made to the way the job is done in its existing form?
     • can the employee be provided with particular equipment or support to enable her to perform the job?
     • can modifications be made to the work schedule or workload?
     • can the job be rebundled (reassembled to create a productive job)?
3. If it is determined that the employee cannot perform the essential or core duties of their current job even with accommodation, identify all other job possibilities in the workplace and ask:
   • What are the essential duties and non-essential duties of the jobs?
   • Of the non-essential duties identified, can any of these duties be removed or reassigned?
   • Of the essential duties identified, what can the employee do and/or what are they unable to do due to the restrictions of their disability?
   • Can the employee perform any of these jobs in their existing form?
   • If not, what can be done to enable the employee to perform any of the possible jobs in a modified or rebundled form? (see also questions under 2 above)

It is critical that, in doing this review of jobs, an employer adequately documents all steps taken in assessing whether it can or cannot accommodate a disabled employee, including the ultimate conclusion reached and the basis for it.  By following the process noted above and creating a proper paper trail, an employer will place itself in the best position possible to demonstrate it has legally fulfiled its duty to accommodate.