The employer must seriously consider whether the employee could be placed short of undue hardship. Failure to reflect on or take into account the issue of placement, including the measures that could be taken, would constitute a breach of the procedural obligation to provide the placement. Workers with disabilities can have many questions when facing discrimination in the workplace. For example, what accommodations are appropriate and which would cause undue hardship? If you believe your rights have been violated under the ADA, you may need legal assistance. Contact a local employment lawyer to learn more about your legal rights and obligations. The duty to accommodate does not require that a person be exempted from performing essential work duties,[155] service requirements, etc. In the employment context, the duty to accommodate does not require the employer to fundamentally change the working conditions of employees, to delegate the essential duties of an employee with a disability to other employees, or to modify the essential duties and requirements of a position. [156] In these cases, another solution may have to be found, e.g., another job. The right of persons with disabilities to return to work exists when the employee is able to perform the essential duties of the workplace after placement without undue hardship. [175] If a person is unable to perform the essential duties of pre-disability employment, even if the employer tries to avoid undue hardship, the employer is nevertheless required to seek other employment opportunities described above. Ultimately, as mentioned above, the person with a disability must be able to perform meaningful and productive work for the employer.

If an organization knows, or ought reasonably to know, that there may be a link between a disability and an individual`s job performance or ability to perform their duties as a tenant or service user, it has a “duty to investigate that potential relationship” before making a decision that would adversely affect the organization. [216] This includes giving the worker, tenant or service user a reasonable opportunity to identify a disability and request accommodation. A serious change in a person`s behaviour could indicate that the situation requires further investigation. This manual is provided for general information purposes only. This is not legal advice about your situation. This guide is not a substitute for a lawyer`s research, analysis and judgment. This guide is reliable at the time of publication (May 2020). You should be aware that laws and procedures under the Human Rights Code (the Code) and the Human Rights Tribunal of Ontario (HRTO) are subject to change without notice.

The duty to accommodate persons with disabilities means that the placement must be provided in a manner that is as respectful as possible of the dignity of the person, if doing so does not amount to undue hardship. Human dignity includes individual self-respect, self-esteem and inherent worth as a human being. This includes physical and psychological integrity and empowerment. It is harmful when people are excluded, stigmatized, ignored or devalued. Privacy, confidentiality, comfort, individuality and self-esteem are important factors. It`s also important to keep in mind that there is a reasonable limit to the distance your employer or service provider must go to meet your needs. Sometimes accommodation is not possible because it would be too expensive or would result in health or safety risks. This is called undue hardship. Your employer or service provider may invoke undue hardship to justify maintaining certain policies or practices, even if they may harm you. You must provide sufficient evidence. The duty to accommodate means that it is sometimes necessary to treat someone differently in order to prevent or reduce discrimination.

For example, requiring all candidates to pass a written exam may not be fair to a person with a visual impairment. In such cases, the duty to accommodate may require that other arrangements be made to ensure that an individual or group can fully participate. The substantive duty to tolerate is linked to the procedural duty to accommodate. Using our employment and disability example above, the duty to physically accommodate refers to the reasonableness of the accommodation provided or the reasons why the employer is not providing accommodation. The central question in deciding whether and how performance standards should be amended is whether the standards in question are obligations or essential requirements within the meaning of Article 17 of the Code. If the person is unable to perform the standard, but the standard is not considered an integral part of the work, it may be modified or the function may be completely removed and reassigned by the employee. If the standard is substantial, the employer is still required to accommodate the employee in accordance with section 17(2) of the Code. In recognition of the overall goal of including workers with disabilities in the workplace, subsections 17(1) and (2) of the Code together contain a duty for an employer to accommodate a person. This does not preclude the employer from applying performance standards that are not related to disability. The employer has the right to a productive employee and to the development of standards and objectives that maximize the company`s objectives. Organizations should be guided by objective evidence when developing or assessing qualification standards that they consider to be essential tasks or requirements. When considering a standard that will be widely adopted, an employer should consider the duties of employees in different environments that are or would be subject to the standard, and determine whether there is a connection between the standard and the employee`s duties: Lauzon v.

Ontario Provincial Police, 2011 HRTO 1404 (CanLII). [150] The duty to adjust does not require an employer to promote an employee to a senior position to which he or she would not otherwise have been entitled: Ellis v. General Motors of Canada Ltd., 2011 HRTO 1453 (CanLII). Nor does the duty to accommodate require that “an employer place an employee in the position it considers ideal.”: Seguin v. Xstrata Nickel, 2012 HRTO 15 (CanLII), at paragraph 11. Once disability-related needs are known, legal responsibility shifts to those who are required to accommodate. [219] For example, assistance or referral through Employee Assistance Programs (EAPs) could be the solution to an underlying disability. [124] In Lane, op.

cit. cit., note 6, the HRTO stated at paragraph 150 that failure to meet the procedural dimensions of the duty to accommodate is in itself a form of discrimination because it “deprives the individual of the benefit of what the law requires: recognition of the duty not to discriminate and to act in a manner that ensures: that there is no discrimination.” The HRTO`s decision was upheld on appeal: ADGA, loc. cit. Note 6. See also Lee, op. cit. cit., note 122. According to the Code, there is no hard and fast rule about how long an employee with a disability can be absent before the placement obligation is met. This depends on the employee`s ability to perform the essential duties of the job, taking into account the unique circumstances of each absence and the nature of the employee`s condition, as well as the circumstances of the workplace.

[176] It is also important to provide for the predictability of absence with respect to when it will end, the possibility of its recurrence and the frequency of absence. The employee`s prognosis and the length of absence are also important considerations. It is more likely that the adjustment obligation will continue with a better prognosis, regardless of the length of the absence. This obligation does not unduly impede the employer. Such undue hardship usually involves undue interference with the business or when the employee is unable to work despite the employer`s efforts to accommodate. What constitutes undue hardship depends on the circumstances of each case. Example: One of the tasks of a pickup truck driver was to load runners with products onto a truck and unload them at their destination. He worked for a small business whose employees were the owner and his wife, a storekeeper and van driver. Due to a back injury, the driver was unable to load and unload the truck, an essential task of his job. He asked for light tasks, preferably office work or relief from loading and unloading the truck. The employer refused this request because there were no easy tasks available and it could not hire an additional person to assist the driver. The HRTO found that the duty to accommodate does not require an employer to delegate the essential duties of an employee with a disability to other employees or to hire another employee to perform them in place of the employee.

An employer is also not required to modify the duties and essential requirements of a position so that an employee can fulfill them. [157] [197] In Lane, op. cit. cit., note 6, a case involving a worker with a mental disability, the HRTO stated at para. 144: “The procedural dimensions of the duty to accommodate required officials to delve deeper into the nature of bipolar disorder and to make a more informed prognosis about the likely effects of their condition in the workplace.” The duty to accommodate is based on three principles: respect for dignity, individualization, integration and full participation. The duty to accommodate does not require the employer to completely change the substance of the employment contract, i.e. the employee`s obligation to perform work for pay. [168] The duty to accommodate does not require the employer to “do work” or “create employment that is not productive or that, in the opinion of the employer, does not need to be done.” [169] An employer is also not required to employ two employees to perform the work of a single employee. [170] Ultimately, the employee must be able to perform useful and productive work for the employer.

[171] The issue is not whether it was impossible for the employer to take into account the characteristics of the employee.