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The Ontario Human Rights Code requires that accommodations be made for persons with disabilities in order for them to perform the essential duties of a job for which they are capable. Employers in fact have a "Duty to Accommodate." The Code also provides for exceptions where "Undue Hardship" is demonstrated.
Job accommodation must respect the dignity of the person with the disability, taking into account the individual's privacy, confidentiality, comfort, autonomy and self-esteem.
What is the first step in job accommodation?
The duties and responsibilities outlined in the job description will, in most cases, assist you in determining which direction you will take in accommodating your employee. You must consider whether a specific job function can be changed in how it is performed, if any equipment or technical aids could assist in job performance, or whether a job duty can be eliminated or transferred to another employee.
Are there exceptions to the requirement for accommodation?
Yes. Current legislation recognizes that in some circumstances a person with a disability may be unable perform the essential duties of a job. However, efforts to accommodate the employee's needs must be made before any such determination is made. In instances where job accommodation constitutes "undue hardship" for the employer, job accommodation is not required. The factors that are considered in determining "undue hardship" are:
- cost
- outside sources of funding, if any health and safety requirements.
What are the standards in assessing (undue hardship?)
Guidelines provided by the Ontario Human Rights Commission outline the following criteria to be used in assessing whether an employment accommodation would cause "undue hardship":
- only cost and health or safety factors may be considered (business inconvenience or customer preference, for example, do not constitute undue hardship)
- costs due to decreased productivity, efficiency or effectiveness can only be used if they are measurable and demonstrated to be related to a proposed accommodation
- unpredictable future possibilities cannot be used to assess accommodation needs in the present (prediction's about future deterioration of a person's ability will not be accepted)
When will costs be considered?
- quantifiable (speculation is not acceptable)
- shown to be related to the accommodation so substantial that they would alter the essential nature of an enterprise or affect its viability (after consideration of: increased productivity, recovery of costs, depreciation or amortization, tax deductions/grants/loans)
- Health and safety risks will only be considered if the degree of risk remaining after accommodation outweighs the benefits of enhanced equality for the employee with a disability.
An accommodation may require an employer to modify or waive an existing health or safety requirement. When the Ontario Human Rights Commission considers a modification or waiver for accommodation, they look at the:
- willingness of a person with a disability to assume a risk related to his or her own health or safety
- risk to others from a modification or waiver in a health or safety requirement
- other types of risks the employer is assuming within their enterprise
- types of risks tolerated within society, in similar types of enterprises, or in the legislated standards.
- Detailed information and examples can be found in the Ontario Human Rights Commission's "Guidelines for Assessing Accommodation Requirements for Persons with Disabilities" (see Reference section).
The above information is provided by Future Abilities and Creative Employment (F.A.C.E.)
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