Duty to Accommodate - FAQ

Employers have a legal obligation under the Canadian Human Rights Act to adjust rules, policies or practices to eliminate barriers and enable employees to participate fully in the workplace. The DTA applies to needs that are related to the grounds of discrimination. The objective is to eliminate barriers so that employees are able to fully participate in the workplace and are provided with the tools and support to enable them to perform to the best of their ability.

The DTA is a shared responsibility. Employees are responsible for communicating and collaborating with management in the identification and implementation of accommodation measures.

Management, in some circumstances, must take the initiative to ask whether an accommodation is needed, even if the employee has not asked for one. This is called the Duty to Inquire. Some examples of when a manager may need to discuss a need for accommodation are:

• Increased and/or frequent absenteeism;
• Issues related to Presenteeism;
• Changes in attitude or behavior;
• Change in work performance;
• Demonstrating unsafe work practices.

The duty to accommodate applies to all current employees of ESDC, including full/part-time, casual, contract, students, and permanent/temporary employees on approved leave, including short and long-term disability and job applicants. It also applies to all aspects of employment including, but not limited to recruitment, selection, training, promotion, and transfers.

A union representative can play an instrumental role in supporting the employee and engaging in the problem- solving process. The attendance of a union representative should be discussed with your manager prior to the meeting.

A request for accommodation should be communicated using the Accommodation Request Form or Accommodation Request Form - Family Status.

The documents to support the accommodation will depend on the type of accommodation requested and the information necessary to identify the employee’s functional abilities, and required accommodation measures. Supporting documents, such as a medical note, may also be required. Management is not entitled to information regarding a diagnosis of an employee’s illness or disability or details of treatment, including medical history. Management should not obtain any medical information without written consent from the employee.

Routine medical notes are to be provided by and paid for by the employee (i.e.: to explain absences, obtain functional limitations, modify hours of work or to create a return to work schedule).

If the initial medical note does not include sufficient information, such as the functional limitations, the cost of obtaining a second note will be the responsibility of the employee. Therefore, it is strongly encouraged that the employee and manager discusses the information that is required to support the request, before taking steps to obtain the information.

If the employee submits information related to their functional limitations and management requires additional information from their health care provider, or needs to clarify information, the employer shall cover the costs. If updated or an in-depth assessment of the employee’s or candidate’s condition or disability is needed, the employer is responsible for paying for the assessment.

A functional limitation can be any restriction in the performance of work activities resulting from illness or injury. Functional limitations can affect physical, cognitive or psychological abilities. They can vary in their duration (chronic or temporary) and severity.

The Fitness to Work and Functional Abilities Assessment Form is used to understand the functional abilities of an employee.

While a functional limitation describes any physical, cognitive or psychological restriction, the accommodation measure is the solution to address any identified workplace limitation that will enable an employee to participate fully in work activities.

Workplace accommodation is provided to meet the needs of employees and must be done up to the point of undue hardship. Workplace accommodation, based on any of the 13 grounds of discrimination under the Canadian Human Rights Act, must take into consideration the needs of an employee and must be done on an individual, case-by-case basis. An employee may prefer a particular accommodation when, in fact, it is not based on a specific need arising, e.g., from family status or a functional limitation due to a type of disability. All proposals that respond to the outlined needs effectively should be considered.

If an employee has functional workplace limitations that prevent the individual from being effective in the job, the employee should talk to their manager about options or tools to help do the job more effectively. Often supporting documentation is required before management can evaluate whether the request is a need that must be accommodated within the workplace.

The following are some common examples of possible accommodation in the workplace:

• Noise cancelling headphones;
• Flexible schedule;
• Job Coach;
• Modifying work methods or some position duties;
• Adapting training programs for employees with learning disabilities (e.g. personalized training, extended duration);
• Providing adaptive technology, as well as special job support, equipment or assistance.

ESDC has the same responsibility for accommodating an employee’s family status as it does for other protected grounds under the Canadian Human Rights Act. In the case of caregiving, a DTA may arise when an employee’s obligation to care for a family member, combined with the employer’s existing rules or policies, make the employee unable to participate fully at work. To be accommodated, employees must show that they have exhausted other reasonable alternatives for care, and have attempted to reconcile their obligations and resolve the issue, before making a request for accommodation.

An individual's caregiving needs will vary over the course of a lifetime. The nature of the needs associated with caring for children will be, for example, significantly different from the nature of the needs associated with caring for an aging parent. Some needs will remain stable over lengthy periods of time, while others may be short term or temporary.

Complete the Accommodation Request Form - Family Status if you have needs related to family status.

Once the accommodation is approved, the Agreement – Duty to Accommodate form should be completed, which notes the specifics of how the accommodation arrangements will be implemented. The employee should retain a copy of the Agreement.At a minimum, all accommodation agreements should be reviewed annually.

Various redress options are available to employees, such as the grievance process, recourse mechanisms set out in the Public Service Employment Act, and filing a complaint with the Canadian Human Rights Commission. You may contact your union to obtain further information on these options.

The following support services are also available to you: the Employee Assistance Program (EAP), the Peer Support Program (PSP), and the Office of Informal Conflict Management (OICM).

Yes, employees are allowed to retain adaptive equipment if they are moving to another position within the Pubic Service. Employees should make arrangements with their manager prior to their departure.

Undue hardship describes the limit, beyond which employers are not expected to accommodate. It is a high threshold. Undue hardship occurs only when an employer cannot sustain the economic costs of the accommodation, or where the accommodation creates undue risk to health or safety. Employers are expected to carefully assess each request independently, and exhaust all reasonable possibilities for accommodation, before they can claim undue hardship.

A BFOR is a standard policy or practice that must be met or an essential task must be done, as an integral part of performing the duties of a specific position. For example, employers are not obligated to (i) recruit a person who, after accommodation is provided, is unable to meet the conditions of employment or work productively. Where an employer establishes a particular BFOR for a specific position, they may exclude certain workers, under some circumstances. An exclusion cannot be considered a BFOR; however, unless the employer can show that the employee cannot be accommodated in that position, without undue hardship to the employer. BFORs are not preferences; they are essential to the job.

A three-step process has been established by the courts to determine if a standard is a BFOR:

• Rational Connection: The purpose of the standard adopted must be rationally connected to the performance of the job;
• Good Faith: ESDC must have adopted the standard in an honest and good faith belief that it is necessary to fulfill the legitimate work-related purpose;
• Necessity: The standard must be reasonably necessary to accomplish the legitimate work-related purpose.

You should speak to your manager, to discuss your situation. Additionally, considerations related to how it will impact other employees, e.g. allergies/safety will need to be discussed.

There are certain expenses, in relation to an employee’s everyday living, that ESDC is not required to reimburse under duty to accommodate. These are known as life aids. For example, it is generally understood that wearing eyeglasses for reading or distance is not considered to be a disability. Eyeglasses are considered to be a “life aid”.

This same principle would apply for an employee who is hard of hearing and has a hearing aid, or another who is unable to walk and has a wheelchair. The employees depend on either the hearing aid or the wheelchair for everyday living. These are considered to be life aids and are part of "job readiness". However, other accommodations may be necessary to ensure that the work environment is conducive to the use of these life aids; e.g., an office where there is minimal background noise or office equipment set up at the right height for a person in a wheelchair.

Candidates must be informed of their rights to request accommodations at every step of the staffing process. As an example, a candidate may be unable, because of family obligations, to attend an interview early in the morning but may be available later during the day. For a written test, a person with a visual impairment may require that documents be provided in a larger format or require specific computer adaptive programs to complete the test. In both examples, the candidates must be aware of their rights to request accommodations and benefit from these accommodations throughout the staffing process. Keep in mind that accommodation does not give some candidates an advantage over others, rather it ensures that all candidates are on equal grounds during the selection process.

When preparing to hold an appointment process, consult the Human Resources Staffing Advisor to ensure that every aspect is considered to make it as inclusive as possible according to requirements three and four of the Public Service Commission Appointment Policy.

The following tips will provide some initial guidance:

• Include duty to accommodate needs in the planning stages.
• Check that job descriptions are detailed, accurate and up-to-date, with essential and nonessential duties differentiated.
• Make sure that job advertisements are inclusive and accessible (e.g. consider expanding the area of selection to include designated groups).
• Ensure that job application websites are accessible, and bring the issue forward to the Public Service Commission if websites are not accessible.
• Provide information about the position in multiple formats, for candidates who are blind or visually impaired.
• Ensure that applicants who are deaf or hard of hearing can make inquiries via a TTY number, fax, or email.
• Provide staff and selection board members, delegated to assist in the hiring process, with the necessary advice and information on accommodation practices.
• Ensure that all candidates are informed of the right to accommodation at each step of the appointment process through the use of appropriate language and communication vehicles. A candidate’s qualifications can only be assessed after the individual has been accommodated.
• Assess accommodation requests individually with the candidate to determine what accommodations are necessary for candidates; e.g. allow extra time for tests or exams, when appropriate.
• Ensure that the interview site is physically accessible.
• Do not take accommodation steps that alter the nature or level of the qualification being assessed (e.g., a blind person cannot respond orally to a test that measures a candidate’s ability to communicate in writing).
• Obtain accommodation information from the candidate and respect the candidates’ rights to privacy and confidentiality and the candidates' views of his/her abilities. An expert medical opinion should be requested in circumstances where the limitations are not evident (e.g. disabilities that are complex and may manifest themselves in various ways with different individuals, such as multiple sclerosis, muscular dystrophy, or cerebral palsy).
• Inform candidates of proposed accommodations well in advance of the assessment step so that they will have time to request clarification or modifications.
• Document accommodation steps.

Note: Ensure that all accommodation requests are dealt with as quickly as possible, in order that all candidates in the process are assessed within the same timeframes, and the outcome is not delayed because of unresolved accommodation issues.

Visit the DTA site at Learning and Training

Speak to your manager or visit the DTA iService site.