In Alberta, discrimination in the workplace based on a physical or mental disability is illegal pursuant to the Alberta Human Rights Act. Central to the goal of a discrimination-free work environment is an employer’s obligation to provide reasonable accommodations to an individual with a disability, up to the point of undue hardship. A workplace accommodation is an action taken by an employer to make adjustments to certain workplace policies or working conditions for employees who have a protected characteristic under human rights legislation.
The duty to accommodate creates duties for both the employer and the employee, who must work together to find a feasible solution. This article explores some of the common questions asked by employees in regard to the accommodation of disability in the workplace.
What Sort of Accommodations Can I Ask For?
Common accommodation requests in Alberta include, but are not limited to:
- Modified Working Conditions or Equipment – Such as an elevator or lift for a wheelchair, or specialized computer equipment or software.
- Modified Job Duties – Such as switching the type or duration of a work duty, such as a reduction in physical labour, or a reassignment to a more suitable position.
- Modified Work Schedule – Such as adjusting work hours or days to accommodate an employee’s family obligations or religious beliefs.
How Much Information Do I Have To Disclose to my Employer?
An employee has no right to reasonable accommodation unless they are able to provide sufficient and reliable evidence of a disability. Therefore, the information provided to an employer must be detailed enough to help the employer understand what limitations are created by the disability so that they can work toward finding appropriate accommodations. This includes requests for medical information, as long as the request is reasonable and made in good faith. Generally, an employee is only obligated to disclose medical documentation which confirms the existence of a disability and the limitations imposed by the disability. In most cases, an employer does not need to know the employee’s official diagnosis, the cause of the disability, or any information pertaining to prescriptions or medical history.
Do I Need To Participate In the Accommodation Process?
Yes! Although the legal duty of reasonable accommodation rests with the employer, the duty to accommodate is a two-way street, and the employee is required to participate. In addition to providing comprehensive information pertaining to his or her needs, an employee should discuss potential accommodations with the employer, and make reasonable efforts to make an agreed-upon accommodation work. Canadian courts have held that accommodations need to be “reasonable” not “perfect.” Therefore, an employee cannot reject a potential accommodation on the basis that it is not a full answer to their requested modifications unless such acceptance would involve material loss for the employee.
Is My Employer Always Required to Accommodate Me?
No. An employer has a legal duty of reasonable accommodation up to the point of undue hardship. Courts have held that some degree of hardship in the accommodation process is acceptable, thus the bar for proving that the hardship is “undue” is quite high. In order to prove undue hardship, an employer must provide objective evidence of any financial, administrative or morale costs that it asserts will result if the proposed accommodation is adopted. Alberta Courts have held that the following considerations are relevant in determining whether an employer will suffer undue hardship if the proposed accommodations are accepted:
- The size and nature of the employer: A larger employer would likely have more flexibility in absorbing potential costs or workflow interruptions associated with proposed accommodations.
- The magnitude of any increased labour costs such as hiring substitute workers, paying overtime or increasing wages.
- The existence of increased administration, regulatory or supervision costs.
- The number of potential requests for similar accommodation from other workers.
- The general economic conditions facing the firm. The duty of accommodation may need to be relaxed in order to assist employers in weathering difficult economic times.
What Can a Lawyer Do?
A lawyer can advise you on your rights under Human Rights Legislation, including the suitability of any current accommodations, and the development of an appropriate accommodation plan to discuss with your employer. If your employer refuses to accommodate you or does not do so up to the point of undue hardship, a lawyer can advise you on whether you have grounds for a potential human rights complaint or wrongful dismissal action against your employer.