In Ontario, the duty to accommodate is a cornerstone of human rights & employment law. Employers have a legal obligation under the Ontario Human Rights Code (the “Code”) to accommodate employees who are protected under the Code. However, this duty is not unlimited. Employers are only required to accommodate to the point of “undue hardship”. This means that while employers must make genuine, good faith efforts to accommodate, any accommodation needs to be within reasonable limits, taking into account costs, disruptions to business operations, or potential risks to health and safety.
Key Takeaways
- Employers in Ontario have a legal duty to accommodate under the Human Rights Code, but this duty is limited to the point of undue hardship.
- Accommodation must follow the principles of dignity, individualization, and integration, and should aim to provide equal opportunity, not preferential treatment.
- Undue hardship is assessed based on cost, health and safety risks, and availability of outside funding, not on inconvenience, morale, or assumptions.
- Employees and employers must collaborate to find reasonable solutions; neither party has the unilateral right to dictate the terms of accommodation.
- Common accommodation requests may be lawfully denied if they are unsupported by evidence, indefinite in nature, conflict with essential duties, or pose safety risks.
- Employers must approach requests in good faith, using an evidence-based process, but they are not required to offer unlimited flexibility.
Principles of Accommodation
The Ontario Human Rights Commission (“OHRC”) details three principles that should always be considered with the duty to accommodate: respect for dignity, individualization, as well as integration and full participation. The goal with any accommodation is equal opportunity for an employee to enjoy the same level of benefits and privileges experienced by other employees. The process is a matter of degree, not a “one size fits all” approach.
“Undue Hardship”
The Ontario Human Rights Commission (OHRC) further outlines that accommodation need not be provided if it causes undue or excessive hardship on an organization. However, some degree of hardship is acceptable. The three factors that should be considered when assessing undue hardship are cost, outside sources of funding (if any), and health and safety risks. Some common considerations that are not considered a hardship are business inconveniences, employee morale, or third-party preferences. Any factor employers use to determine hardship must be backed by evidence and should never be based on assumptions or personal opinions.
Determining the Accommodation
Contrary to popular belief, employees do not dictate the accommodation needed for their particular request, nor do employers impose an accommodation once a request has been received. Rather, both parties must work together to determine the accommodation necessary that is suitable for both the employer and the employee, based on the above principles and hardships. Accommodations vary greatly and should be determined on a case by case basis.
Common Accommodation Requests that may be Denied
To better understand the limits of the duty to accommodate, below are some common examples of accommodation requests that could be lawfully denied in Ontario:
- A request to work remotely without justification – An employee claims they have anxiety and requests to work entirely from home, but fails to provide medical documentation supporting the need for remote work as an accommodation.
Why it may be denied: Employers are not obligated to accommodate speculative or unsubstantiated requests. A proper medical assessment is required to justify the need for specific accommodations. - Extended leave of absence with no return-to-work timeline – An employee with a disability requests an indefinite leave of absence with no anticipated return date.
Why it may be denied: While time off can be a valid accommodation, an indefinite leave with no indication of return can amount to undue hardship. Employers are not expected to hold a position open indefinitely. - Religious accommodation that conflicts with core job duties – An employee refuses to work weekend shifts due to religious beliefs, but the job is in an emergency service that requires rotating weekend shifts as an essential part of the role.
Why it may be denied: If accommodating the request would compromise the essential operation of the business or create staffing shortages, and no reasonable alternative exists, it may be deemed undue hardship. - Safety risk to other employees – An employee with a medical condition requests to bypass mandatory use of personal protective equipment (PPE) in a manufacturing plant.
Why it may be denied: If the accommodation compromises the health and safety of others or the employee themselves, it can amount to undue hardship. Safety risks must be evaluated with supporting evidence.
All this to say, employers in Ontario must take accommodation requests seriously and follow a procedurally fair and individualized approach. However, they are entitled to draw the line where accommodation becomes unreasonable or unduly burdensome. Accommodation is about finding a reasonable balance, not providing unlimited flexibility.
Whether you’re an employee requesting accommodation at work, or an employer trying to navigate the fine lines of hardship, our firm regularly advises on accommodations and can help.
