Duty to Accommodate - Being "Right" in the End Isn't Enough, It Matters How You Get ThereChen v. Ingenierie Electro-Optique Exfo, 2009 HRTO 1641 (CanLII)
When an employer becomes aware, or ought reasonably to become aware, that an employee suffers from a disability requiring accommodation, the duty to accommodate is triggered. The duty to accommodate is a collaborative process, wherein the employee has obligations to provide as much information as is possible to assist the employer in its attempt to accommodate the employee’s needs. The employee does not necessarily have to disclose his or her diagnosis (for a more detailed discussion of information employers are entitled to in the accommodation process see my blog entitled What Questions Can an Employer Ask an Employee with a Disability?).
The duty to accommodate has two parts: (1) a procedural component, and (2) a substantive component. This article will discuss in detail the various components of the duty to accommodate and highlight a recent decision that will be of interest to employers when determining appropriate accommodation.
The Procedural Component
The procedural component requires employers to assess the individual needs of a specific employee and offer consideration of possible methods of accommodation.
The Substantive Component
The substantive component requires consideration of the reasonableness of the accommodation provided or the rationale for failing to provide appropriate accommodation.
Chen v. Ingenierie Electro-Optique Exfo Inc.[i]
In Chen v. Ingenierie Electro-Optique Exfo Inc., a 2009 decision of the Human Rights Tribunal of Ontario, the Applicant worked as a shipper-receiver for the Respondent employer. The applicant began to experience back pain in the workplace, however did not tell his supervisor. The Applicant went on vacation to China where he was diagnosed with sciatica.
The Applicant saw a Canadian physician and provided a subsequent report indicating that he suffered from sciatic. Upon receipt of eth information the employer arranged a meeting with management, human resources, and the Applicant to discuss accommodating the Applicant’s functional limitations. Following the meeting the applicant was told to return home for two days and report back after that period (he was paid for those days and permitted to take them as sick time).
The following day after the meeting, human resources met with the plant managers to determine whether any department had positions available that could accommodate a worker with modified duties. Ultimately the employer concluded there were no positions available to accommodate the Applicant and five days later his employment was terminated.
The Tribunal accepted that there may not have been any positions in which to accommodate the Applicant however stated that the employer failed to satisfy the procedural component of the duty to accommodate for the following reasons:
- The period of time from the date the employer learned of the Applicant’s functional limitations until the date of his termination – a mere 2 days – was insufficient;
- The employer failed to request a functional abilities form to actually determine what the Applicant was able to physically do, and
- The employer failed to discuss accommodation options with the Applicant.
The Tribunal ruled that an employer has a duty to make meaningful inquiries into an employee’s needs. The employer in this case was required to obtain more information about the Applicant’s limitations and spend more time assessing whether he could be accommodate. As a result of the failure to accommodate the employer was ordered to pay the Applicant fifteen weeks’ lost wages and $5,000.00 as general damages for the pain, humiliation and loss of dignity the Applicant experienced.
The duty to accommodate requires more than “going through the motions”. Employers should ascertain the specific limitations and abilities of their employee, and then engage in a meaningful process to determine whether accommodation is possible. The assessment should not be merely a day or two, but rather an ongoing process wherein the employer maintains communication with the employee throughout the process.
[i] Chen v. Ingenierie Electro-Optique Exfo Inc., 2009 HRTO 1641
Originally posted at www.ontariohumanrights.net (legal blog maintained by Wade R. Poziomka)