ESDC Guidelines - Duty to Accommodate in the Workplace

1. Introduction

1. Introduction

ESDC recognizes the importance of a diverse workforce and values its employees and their individual contributions to the department’s objectives. As such, ESDC’s priority is to create an accessible, barrier-free and inclusive workplace by removing barriers from the onset and designing all standards, rules and work practices to provide all employees with an equal opportunity to fully participate in the workplace and work activities without discrimination.

The duty to accommodate (DTA) refers to ESDC’s obligation to take steps to eliminate, in a timely manner, any remaining barriers for employees whose needs may not be met by general accessibility or inclusivity efforts, so that they may also be able to fully participate in the workplace and work activities.

ESDC’s actions with regard to workplace accommodations are guided by human rights principles and legislation including the Canadian Human Rights Act, the Treasury Board Directive on the Duty to Accommodate, the Accessible Canada Act and the Treasury Board Secretariat’s Accessibility Strategy, in its workplace practices.

Appropriate workplace accommodations (see definitions), are provided to support employees to fulfill the duties and responsibilities of their position and in order for ESDC to meet its obligations as an employer. Workplace accommodations are also key to creating a healthy, inclusive workplace and they are the right thing to do.

2. Purpose

2. Purpose

The purpose of these Guidelines is to provide guidance, ensure consistency and promote a better understanding of the accommodation process to the workplace parties; and to ensure the full participation of all employees, and also candidates and potential candidates in selection processes in accordance with the Public Service Employment Act and the Public Service Commission’s Appointment Policy.

3. Application

3. Application

These Guidelines apply 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.

4. Legal Framework

4. Legal Framework

These Guidelines reflect the Department's responsibilities flowing from four primary instruments: Canadian Charter of Rights and Freedoms, the Employment Equity Act, Canadian Human Rights Act and the Accessible Canada Act.

The Canadian Charter of Rights and Freedoms provides all individuals with the equal protection and benefit of the law without discrimination, and does not preclude any program or activity, that has as its objective, the improvement of conditions for disadvantaged individuals or groups.

The Canadian Human Rights Act (CHRA) prohibits discrimination on the following thirteen grounds: race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disability, genetic characteristics and conviction for which a pardon has been granted or record suspended.

The purpose of the CHRA is to ensure that all employees have an equal opportunity to make for themselves, the lives that they want to have and to have their needs accommodated consistent with their duties and obligations as members of society.

The Employment Equity Act requires employers to identify and remove employment barriers and provide accommodations, to ensure that designated group members (women, persons with disabilities, Indigenous peoples, and members of visible minorities) are not denied opportunities for reasons unrelated to their ability. Under the Employment Equity Act, the Treasury Board and the Public Service Commission share ESDC responsibilities, to the extent of their authority under the Financial Administration Act and the Public Service Employment Act.

The Accessible Canada Act (ACA) purpose is to benefit all persons, especially persons with disabilities, through the realization of a Canada without barriers, by the identification, removal and prevention of barriers.

4.1 The Duty to Accommodate

The DTA refers to the obligation of an employer to take steps to eliminate disadvantage to employees resulting from a rule, practice, or physical or attitudinal barrier, that has an adverse impact on individuals or groups protected under the Canadian Human Rights Act. Sometimes, workplaces have rules, policies, practices and behaviours that apply equally to everyone, but can create barriers based on a characteristic, related to one or more prohibited grounds of discrimination. These barriers can be difficult to identify particularly where they reflect intersectional discrimination. Canadian human rights legislation recognizes that equality requires respect for people’s different needs and circumstances. In employment, this means valuing and accommodating differences so that all employees can work to the best of their ability.

The DTA requires employers to identify rules, practices and barriers that have an adverse impact on an individual or group for a human rights-related reason. Employers are required to accommodate employees by incorporating alternative arrangements, to eliminate the adverse impact for the particular individual or group.

5. Limits on the Duty to Accommodate

5. Limits on the Duty to Accommodate

Accommodations can cover a wide variety of situations and therefore, many different solutions are possible. However, in exceptional circumstances, the DTA may be limited. An employer does not have to accommodate an employee if a particular attribute or characteristic is a bona fide occupational requirement (BFOR).

A BFOR may be established if a standard 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.

There is a three-step process to determine if a standard or a particular task is a BFOR:

Rational Connection: The standard 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 was necessary to fulfill the legitimate work-related purpose.
Necessity: The standard must be reasonably necessary to accomplish the legitimate work-related purpose. To show that the standard is reasonably necessary, the employer must show that it is impossible to accommodate the individual without undue hardship.

Undue hardship describes the limit, beyond which employers are not expected to accommodate. It is a high threshold and it is only very rarely reached.

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.

At ESDC, it is important to explore all accommodation options, for example: beyond a specific work unit, location, division, even outside of ESDC, etc. The concept of “undue hardship” recognizes that the employer may be required to experience some hardship, in order to accommodate an individual.

Each situation should be viewed as unique and assessed individually. A claim of undue hardship must also be supported by facts. Undue hardship cannot be based on assumptions, impressions, or opinion.

6. Responsibilities and Expectations in the Accommodation Process

6. Responsibilities and Expectations in the Accommodation Process

The DTA is a shared responsibility, multi-party process. Management and employees work together and will make every effort to creatively and collaboratively explore options, to identify and implement workplace accommodations that meet everyone’s needs, so that employees can participate to their full potential. A successful accommodation may require the collaboration of multiple parties, including the employee or candidate, management, union, third party representatives, human resource partners, and co-workers. Management may also seek out union assistance when appropriate.

7. Five-Step Process

7. Five-Step Process

The DTA Five-Step Process is intended to walk all parties through the accommodation process, regardless of the ground of discrimination. Although many references are made to disability and family status, this DTA process applies to all grounds.

The DTA Five-Step Process. Long description below

Long Description

The DTA Five-Step Process is intended to walk all parties through the accommodation process, regardless of the ground of discrimination. Although many references are made to disability and family status, this DTA process applies to all grounds.

The process is divided in 5 different and succeeding steps. These are Step 1. Manager, in discussion with the employee, recognizes the need for accommodation, Step 2. Manager discuss nature of request with employee and gathers relevant information, Step 3. Manager, in collaboration with employee, make an informed decision, Step 4. Manager provides employee with an appropriate workplace accommodation, and Step 5. Manager follows up with employee and maintains record of agreed upon accommodations.

The descriptions below explain each step in more details and how they can be completed to better enable a successful accommodations request.

Step 1: Disclose/Recognize the need for accommodation

Step 1. Manager, in discussion with the employee, recognizes the need for accommodation

A request for accommodation should be communicated using the Accommodation Request Form or Accommodation Request Form - Family Status. This form provides a useful tool for employees to make their request. However, even if employees do not submit the request in writing, management and the employee should use the form to document the employee’s need and agreed accommodation. It is important to discuss the nature of the request with the employee without delay. Ensure a mutual understanding of the DTA process, timelines etc., to manage expectations throughout the process.

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:

When new work procedures or technology is being implemented in the workplace;
Increased and/or inconsistent absenteeism;
Changes in attitude or behavior;
Change in work performance;
Demonstrating unsafe work practices.

At times employees are uncomfortable about revealing their accommodation needs for fear of being identified as someone with a disability or someone who requires an accommodation. In some situations, an employee may fear that telling their manager about a problem will have negative consequences, or they may be embarrassed to admit they require accommodation. This may be because of the stigma associated with disabilities concerning mental illness or substance dependence. Sometimes, the very nature of a disability can cause employees to be unable to ask for an accommodation.

The Office of Informal Conflict Management (OICM) can be a valuable resource for managers when preparing to have a challenging discussion with an employee, related to a workplace situation. An ICM Practitioner can provide support through individual coaching, to explore options to manage the situation in an effective and constructive way. Through tools and guidance, this preparation can increase the manager’s confidence and ability when having a discussion with an employee.

While gathering the relevant information, consider implementing an interim accommodation measure, to support the employee on a temporary basis.

Step 2: Gather relevant information and assess individual needs

Step 2. Manager discuss nature of request with employee and gathers relevant information

Managers and employees work together in good faith to gather the information.

The documents that support the accommodation will depend on the type of accommodation requested and the information necessary to identify the employee’s functional abilities, and needed accommodation measures. In many cases, even those related to a disability, obtaining medical notes or medical information is not required and may only lead to delays in implementing accommodations. Management should carefully consider what documentation is truly required to identify and implement an accommodation.

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 also not obtain any medical information without written consent from the employee.

In the case of disability and medical information, the following information may be required depending on the situation:

Employee’s functional limitation(s);
Likely duration of time for any physical or cognitive limitations;
Prognosis for full or partial recovery from a disability or illness;
Employee’s ability to perform specific parts of their job;
Employee’s ability to return to work.

This information can usually be obtained from the employee’s health care provider who may be their treating physician.

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). This is also the case for medical notes that support the DTA process.

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 discusses with their manager, the information that is required to support the request, before taking steps to obtain the information from their health care provider. However, if the employee submits information related to their functional abilities and management requires additional information from their health care provider, or needs to clarify information, the employer will pay. 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.

For cases of family status (see Appendix A), management should discuss with the employee all reasonable and diligent efforts that have been explored, and all alternatives the employee has undertaken. Consideration should be given to explore all normally available workplace flexibilities, such as shift changes, hours of work changes etc. that address the circumstances for which their family status accommodation is required, prior to framing the discussion as an accommodation request.

During the information gathering step, management and the employee should keep in communication, especially if delays are encountered, (i.e. while gathering information to support their request) to ensure a common understanding of timelines and next steps. If unexpected delays occur, temporary accommodation measures should be implemented by management to support the employee during the process.

Step 3: Make an informed decision

Step 3. Manager, in collaboration with employee, make an informed decision

Once the information has been obtained, the manager and employee work in partnership to consider and discuss reasonable options. Many situations can be resolved by utilizing flexibility in applying policies or developing solutions, such as a change to hours of work, telework etc.

When assessing accommodation measures, all options should be considered, for example, if no accommodation is available within the workplace/location, options outside the workplace and/or location should be explored. Modifying job tasks or re-bundling duties should also be considered. All options should be considered before the point of undue hardship is reached.

When considering telework as an accommodation, consult the TBS Telework Directive.

When considering adaptive technology measures, management must contact ACE in order to ensure that all technical options are considered via their GD mailbox: edsc.ti-it.a11y.esdc@hrsdc-rhdcc.gc.ca.

If delays are encountered, or if additional information is required to support the request, it is important that the manager and employee communicate, and keep each other informed of the anticipated next steps, timeframes etc.

If the accommodation will be denied, Management must discuss the circumstances with Labour Relations to assess whether there are other alternative measures that can be identified.

Step 4: Implement and communicate the decision

Step 4. Manager provides employee with an appropriate workplace accommodation

The manager will communicate the decision regarding the accommodation request to the employee. If the accommodation is approved, complete the Agreement - Duty to Accommodate (DOCX, 48 KB), noting the specifics of how the accommodation arrangement will be implemented.

If the changes will affect other employees, the manager and employee should discuss how this will be communicated to co-workers. Privacy and confidentiality remain paramount in these discussions.

When an accommodation requires adaptive technology, the manager, employee and the ACE will work in collaboration, to ensure that the employee is provided with the necessary technology.

When an accommodation requires the purchase of equipment, adaptive technology or other working tools, which require financial approval, it is the responsibility of management to present the accommodation need to the appropriate level of signing authority, e.g., the Director and/or Director General and/or the common cost pool authority. If delays are encountered, communicate with the employee the expected timeframes for the accommodation implementation, identify factors that might affect estimated timeframes, and take steps to provide interim accommodation.

If the accommodation is denied:

Provide rationale and justification for why the request was denied.
Advise of all available redress options, such as the grievance process as outlined in the respective collective agreement, recourse mechanisms set out in the Public Service Employment Act, and filing a complaint with the Canadian Human Rights Commission. Where applicable, inform employees to contact their union to obtain further information on these matters.
If the information does not support an accommodation, because it is unclear, the employer has a duty to request clarification from the employee, or their health care provider (if applicable).
Offer the support services of Employee Assistance Program (EAP), Peer Support Program (PSP), Office of Informal Conflict Management (OICM), as appropriate.

Step 5: Follow-up and keep records

Step 5. Manager follows up with employee and maintains record of agreed upon accommodations.

Once the accommodation arrangement is in place, the manager and employee should stay in open communication and discuss changes, issues or concerns that may arise.

It is useful to plan follow-up meetings periodically to ensure the accommodation meets the needs, and modify, if necessary. At a minimum, all accommodation agreements should be reviewed annually.
Document accommodations and provide pertinent information only to those involved in the accommodation process, in a way that will respect privacy and confidentiality.
Integrate accommodation needs into future human resources and business planning.
Keep accommodation documents, including recommendations from a health care provider, confidential and separate from personnel files.
If there is a change in management, ensure the accommodations are part of the onboarding process.

8. Training

8. Training

There are many learning offerings available for managers and employees on DTA. You can access these, through the DTA Learning Page on iService. This page will be reviewed and updated as needed.

9. Privacy and Confidentiality

9. Privacy and Confidentiality

All documents related to specific requests for accommodation will be protected and administered as per the Privacy Act and the Department of Employment and Social Development Canada Act. The personal information will only be disclosed with the consent of the employee or candidate.

10. Review

10. Review

These Guidelines will be reviewed every three (3) years or more frequently, as required, to ensure consistency with changes to DTA related legislation, relevant cases interpreting the DTA, as well as central agency and departmental policy instruments.

11. Resources and Legislation

11. Resources and Legislation

11.1 Legislation

11.2 Resources
- Canadian Human Rights Commission

11.3 Treasury Board Secretariat (TBS)
- Directive on the Duty to Accommodate
- Directive on Telework

11.4 Public Service Commission

11.5 Employment and Social Development Canada

12. Departmental Tools and Resources

12. Departmental Tools and Resources

Appendix A – Family Status

Appendix A – Family Status

ESDC has a DTA when an employee’s needs are based on any of the grounds of discrimination in the Canadian Human Rights Act. Human rights law prohibits discrimination based on the ground of family status (FS).

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.

ESDC is required to accommodate to the point of undue hardship.

Undue hardship describes the limit, beyond which employers are not expected to accommodate. Undue hardship usually occurs when an employer cannot sustain the economic or efficiency costs of the accommodation, or create risk to health and safety. Employers are expected to consider all reasonable possibilities for accommodation before they can claim undue hardship. A claim of undue hardship must be supported by facts, it is not enough to claim undue hardship based on an assumption or opinion, and evidence as to the nature and extent of the hardship will need to be provided.

CHRC Definition of Family:: Definition of “Family” is a broad and inclusive term. It includes family members who do not live in the same household, and relationships from bonds of blood or law, including common‐law. It includes relationships between parents and children (including adoptive and foster children), and with spouses (marital and common law), siblings, in‐laws, uncles and aunts, nephews and nieces, cousins, grandparents and grandchildren.
Families can also include relationships not defined by blood or legal bonds. This may include “chosen families,” such as strong friendships and communities where unrelated persons provide care normally provided by nuclear family members. These relationships may be particularly important for Indigenous people or people who are gay, lesbian, bisexual, or transgender.

Responsibilities and Expectations:

Employee:
1. A request for accommodation on the basis of family status should be communicated using the Accommodation Request Form - Family Status (DOCX, 39 KB). This form provides a useful tool for employees to make their request.
2. Outline the steps taken to resolve their family situation, including:
  - The family obligation that exists; how this obligation conflicts with a work practice, standard, or policy; and the impact on the employee;
  - Efforts undertaken to find alternate solutions to their family situation (i.e. assistance from organizations, community supports, social programs, friends and family members) and efforts to reconcile the conflict between their work and family obligations. Employees must demonstrate they have made reasonable efforts to explore other alternatives for care, and/or;
  - Advise of the current arrangements in place to manage the family situation.
3. Meet with management and discuss the request, explore all workplace flexibility policies and consider other alternatives, agree to reasonable accommodation measures, even when the arrangement may not be their preferred solution.
4. Advise management if their circumstances change, as this may affect the need for accommodation.
Management:
1. Create an environment that is respectful of family related needs of employees and is inclusive of all family types.
2. Review FS requests, and obtain information to determine if the circumstances meet a family obligation, under the ground of family status. Consider implementing interim solutions, while gathering the information.
3. Meet with the employee to discuss their request. In some cases, the manager may have to ask the employee to disclose details about their family situation to better understand what is required for their accommodation.
4. Respecting the employee’s dignity and privacy is paramount in these discussions, and questions should be relevant to the situation, such as:
  - The employee’s relationship to the person receiving the care.
  - The specifics of the care the recipient needs, i.e.: what is needed, how often, and when.
  - How long the person is likely to need the care, consider that some caregiving may be unpredictable or episodic.
  - Why the employee should be the one to provide the care.
  - What realistic alternatives are available, (i.e.: friends, family, home/day care, community supports).
  - What efforts have been made to reconcile work and caregiving obligations and how these efforts were successful or not?
  - What are the work place accommodation needs that remain after these efforts?
5. Collaborate with the employee to find a solution that balances their caregiving needs and work responsibilities. Explore all available options, including the possible use of workplace flexibility, which may resolve the matter, without the need for an accommodation discussion.
6. Consult Human Resource Service Centre (HRSC) and Office of Informal Conflict Management, as needed.

If the request meets the criteria:

Discuss appropriate accommodation measures and implement the arrangement;
If the changes will affect other employees, the manager and employee should discuss how this would be communicated to co-workers. Privacy and confidentiality remain paramount in these discussions;
Plan follow-up meetings to discuss any changes, issues, concerns etc.;
Document the DTA-FS arrangement using the Agreement - Duty to Accommodate (DOCX, 48 KB).

If the request does not meet the criteria:

Meet with the employee to communicate the decision and explain the reason for not accepting the request;
If the information does not support an accommodation, because additional information/clarification is needed, offer additional time for the employee to provide the required information, consider an interim measure while the material is being gathered;
Consider other alternate work arrangements, to support the employee;
Advise of all available redress options, such as the grievance process as outlined in the respective collective agreement, recourse mechanisms set out in the Public Service Employment Act, and filing a complaint with the Canadian Human Rights Commission. Where applicable, inform employees to contact their union to obtain further information on these matters;
Offer the support services of Employee Assistance Program (EAP), Peer Support Program (PSP), Office of Informal Conflict Management (OICM), as appropriate, and;
Document the discussion and decision.

Appendix B – Document Control

Appendix B – Document Control

This Guideline takes effect September 10, 2021. Revisions and updates take effect as noted in the table below.


Version	Revision Date	Revised By	Description of Revisions
1.0	September 10, 2021	D.Lambert	Original Version