Right to Reasonable Accommodation

OCADFA is working on developing resources to better assist members in the accommodation process, and as part of that we’ve prepared the below primer to familiarize our members on the legal basis of accommodations.

If you think you may require an accommodation, we invite you to familiarize yourself with OCADU’s Accommodation Policy, and to contact us for assistance.

What is the Duty to Accommodate?

Enshrined in the Ontario Human Rights Code (OHRC), the duty to accommodate is the legal duty to reduce or eliminate discrimination by adjusting rules, policies, and practices to enable individuals who are disadvantaged on their basis of membership in an OHRC protected group. Discrimination, for our purposes here, is defined by the Supreme Court of Canada as

“… a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or groups not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.”

It’s important to underscore that intent does not necessarily matter, what we need to consider is the impact. Thus, while a specific OCADU policy or an agreed upon provision of our Memorandum of Agreement may be not be discriminatory in intent, its still possible for it to have a discriminatory impact on an individual member. This is where accommodations come into play, to reduce or eliminate that unwarranted discrimination.

Human rights legislation is considered to have a ‘quasi-constitutional’ status, this means all other statutes and agreements need to be consistent with it. Thus, while the No Discrimination clause (Article 8) of our Memorandum of Agreement identifies prohibited grounds of discrimination, membership any group protected in the OHRC may trigger the duty to accommodate. 

Are there different types or forms of accommodations?

While the most common need in workplace settings arise on grounds of disability, which is why OCADU’s accommodation policy is specifically geared towards this type of accommodation, it is important to note that all protected grounds covered in the OHRC may give rise to the duty to accommodate. Other common grounds for workplace accommodations are sex/pregnancy, family status, age, creed, gender identity and gender expression. 

While the duty to accommodate is only triggered on OHRC protected grounds, this does not preclude accommodations on other grounds, though these accommodations are less likely to become formalized and recourse to the grievance procedure is unlikely.

If you’re uncertain if you have grounds for an accommodation, please do not hesitate to reach out to us.

What form does the accommodation take?

The form an accommodation takes depends on the specific circumstances that give rise to the need – we therefore need to take an individualized approach to accommodations. The form a medical accommodation on the ground of disability takes, for example, will depend heavily on demonstrable workplace restrictions according to the documentation you are able to provide. (You do not need to disclose the diagnosis, but rather documentation from a medical professional indicating what your limitations/restrictions are).

Are there limits to the duty to accommodate?

There are, and they can be broken down into three areas:

  • Employees are entitled to reasonable accommodations, but not the “perfect” or most desirable accommodation. That said, for all types of accommodations, your dignity needs to be respected. For example, requiring someone with mobility limitations to use the loading dock instead of installing a ramp to a common entrance is not a dignified or reasonable accommodation.
  • The point of undue hardship: once the point of undue hardship is reached, the duty to accommodate ends. Some hardship (i.e., the cost of installing a ramp, or providing a special screen and software for people with visual impairment) on the part of those whom the duty to accommodate applies must be accepted. Just like how an accommodation is individualized, the point of undue hardship is also individualized for employers. Thus, the point of undue hardship for a small privately-owned gallery with two or three employees and minimal profit margins is substantially less than the point of undue hardship for a publicly funded post-secondary institution. The onus is on the party claiming undue hardship to demonstrate they’ve reached that point.
  • Bona fide occupational qualification/requirements: this is an exception to the prohibition on discrimination. It happens when an employer imposes a requirement or qualification that is discriminatory, but there are legitimate reasons for the discrimination – i.e., grounds that simply cannot be accommodated. There is a stringent legal test, referred to the “Meiorin Test” or “The B.C. Firefighters’ Test,” that employers need to demonstrate for this to apply. Essentially, the qualification/requirement must be rationally connected to the function being performed, and its not likely that this limitation applies to the functions performed by our members. For example, the ability to lift above 40 lbs. in some occupations is a bone fide requirement and this limitation on the duty to accommodate may apply, but even if some of members may occasionally carry 40 lbs. worth of instructional or practice supplies its unlikely to be an occupational requirement that cannot be reasonably accommodated for to the point of undue hardship, and therefore this limitation on the duty to accommodate is unlikely to apply

What if there’s a breach of the Duty to Accommodate?

A breach or refusal to provide reasonable accommodation that is needed on code-based grounds results in further discrimination of the employee. The two most common avenues to take in such circumstances are to either pursue a remedy via the grievance procedure, in which OCADFA can represent you, or to file an HRTO complaint. The are benefits and disadvantages with both routes, and we can be of assistance in helping you make that decision.

To whom does the duty belong?

Typically, we speak of the employer’s duty to accommodate, but it is a shared duty and all three parties (the employee, the employer, and the FA) have obligations to fulfill, which are as follows:

  • The employee:
    • While under certain circumstances the employer (and union) have a duty to inquire (particularly concerning mental health), generally it is the responsibility of the employee to identify a need for an accommodation;
    • Provide information needed to substantiate the need; for example, a physician’s note or a statement of medical restrictions filled out by a medical professional (an employer has the right to know the nature of the accommodation need, but you are not obliged to disclose the diagnosis);
    • Cooperate in search for reasonable accommodation, and then accept reasonable accommodation;
    • If possible, to take reasonable steps to mitigate need for accommodation; for example, comply with medical treatment plans.
  • The employer/OCADU
    • Has the primary obligation to accommodate and investigate options;
    • Accommodate to the point of undue hardship;
    • Must consider alternatives which do not affect the rights of other employees first;
    • Must look for alternate accommodations where previous attempts have failed;
    • Modify and update accommodations as circumstances change.
  • The union/OCADFA
    • Be proactive;
    • Bring need for accommodation to attention of employer, suggest possible solutions;
    • Help member gather relevant information and safeguard privacy;
    • Must participate in effort to find a reasonable accommodation;
    • When necessary and to the point of undue hardship, be flexible in applying collective agreement/memorandum of agreement language because sometimes the same treatment can have different or potentially discriminatory effects on members.

If you have any questions about accommodations, feel free to contact our Executive Director