Purpose statement
The Town of Oakville is committed to providing an inclusive workplace that supports employee health, safety, and wellness, and that is also free from discrimination as required under the Town’s Respectful Conduct Policy, the Ontario Human Rights Code, RSO, 1990 (Code), and the Accessibility for Ontarians with Disabilities Act (AODA). This procedure has been established so that employees are familiar with their roles and responsibilities as they relate to the process of exploring and assessing requests for accommodation due to disability.
Work related injuries or illnesses are managed according to Workplace Safety and Insurance Board (WSIB) legislative requirements. Accommodation in the recruitment process is in accordance with the Town’s Accessible Employment procedure.
The Town recognizes its duty to accommodate to the point of undue hardship and commits itself to an accommodation process that respects the Code principles of dignity, privacy, inclusion, and individualization.
This procedure supports the Town’s objective to ensure that all employees receive equal treatment and opportunities regardless of disability up to the point of undue hardship. This includes:
- Ensuring every effort is made to accommodate an employee in need of accommodation through the recruitment process
- Ensuring every effort is made to accommodate an employee in need of accommodation in their own job;
- Providing accommodation in an existing alternative job vacancy in the Town if unable to accommodate the employee in their own job;
- Ensuring all work is performed in a manner which is safe for the employee, their co-workers, and the public; and,
- Ensuring that the work performed is meaningful work.
Scope
This procedure applies to all Town employees (including but not limited to full-time, part-time, casual, students, temporary, seasonal, and interns). This procedure applies to all aspects of employment including, but not limited to, recruitment, selection, training, promotion, transfers, work arrangements, return to work, etc.
Procedure
Removing Systemic Barriers
Simple and cost-effective accommodation solutions can be found when taking a systemic approach to identifying and removing barriers. However, such barriers are not always apparent, and employees are encouraged to work with management and Disability Management to help identify existing and/or potential barriers.
Accommodation Request
Employees need to make their accommodation needs known as far in advance as possible from when the accommodation is likely required to provide management and Disability Management sufficient time to consult with the employee in order to explore and respond to the request. Exploring disability-related accommodation requests can be complex and may involve multiple parties. While every attempt is made to be as prompt in reaching a conclusion, it is not unreasonable in certain circumstances for delay to occur as a result.
Those requesting accommodation should focus on their capabilities and functional limitations that impact their ability to apply for work or perform their job. Requests for accommodation should be submitted in writing to Disability Management (hrdisability@oakville.ca) within the Human Resources Department using the confidential Disability Accommodation Request Form. The completed form should be accompanied by objective medical documentation from a treating physician in which capabilities and functional limitations are clearly identified.
In most cases, it is the employee’s responsibility to trigger the accommodation process by notifying management and Disability Management. However, if management suspects that a disability may be impacting an employee’s ability to perform the essential duties of their job, there is a duty to inquire regarding potential accommodation needs. In these situations, management should first consult with their Human Resources Consultant and with Disability Management.
Assessing the Accommodation Request
Management will work with Disability Management to explore and provide accommodation to the extent necessary. Management and Disability Management will document the accommodation exploration process and any accommodation plan that exists.
Those reviewing the accommodation request may have clarifying questions and, in many cases, the employee will need to provide additional information about their capabilities and functional limitations after the initial request for accommodation. The Town has a right to objective medical documentation from a treating physician outlining capabilities and functional limitations and restrictions so that an appropriate accommodation can be arranged. To facilitate the accommodation process, employees have an obligation to cooperate by providing information about their capabilities and functional limitations and remaining flexible in considering reasonable accommodation solutions. If an employee does not cooperate by providing objective medical documentation in a timely manner, an accommodation may not be put in place until medical information is received confirming a disability and outlining the capabilities and functional limitations that need to be accommodated.
Disability Management will work with management in consulting with the employee and other experts as necessary to identify and assess as many accommodation solutions as possible. The aim of employment accommodation is to address disability-related barriers that impact an employee’s ability to perform the essential duties of their job. Accommodation will be developed to meet individual needs in a way that is least disruptive to the employee and to departmental operations. In some cases, Disability Management may determine that there is insufficient medical evidence or that the medical evidence does not support the need for accommodation.
There may be no requirement for accommodation if:
- the request is not linked to a disability
- there is not sufficient objective medical documentation to support the request
- the functional limitations do not trigger the need for accommodation when reviewed against the essential duties of the job
- sufficient evidence is received that contradicts the information provided by the employee (particularly if it is received from a subject matter expert)
It is important to note that:
- Accommodation needs vary widely from person to person and relate to the individual, the environment, the tasks, or the tools needed to perform the job.
- Accommodation does not require creating a new job, nor does it require removing essential duties of the job or changing the job such that it becomes a substantially different one.
- Accommodation is intended to assist the employee to meet performance standards.
- The employee should provide input and may identify the accommodation measure they prefer; however, they must also be open to exploring other options that effectively accommodate their capabilities and functional limitations.
- When identifying accommodation solutions, the Town is entitled to select the accommodation option that is the least costly and minimally disruptive to operations.
- Accommodation cannot pose a health and safety risk to the employee, co-workers, or the public.
- Employees must accept a reasonable accommodation.
- Employees whose accommodation places them in an alternate position shall receive the rate of pay of that position and all associated benefits and entitlements, even if it is less than what the employee was receiving in their pre-injury or pre-illness position.
- If a reasonable accommodation has been offered and the employee declines it, the Town will have been deemed to have met their obligations under the Code.
- Accommodations will be reviewed by Disability Management at least annually.
Accommodation Options
Accommodation will be provided in a manner that respects the dignity and independence of persons with disabilities. Disability Management and management will first fully explore accommodation with the employee within their own job. If the employee is unable to be accommodated in their own job, all existing job vacancies will be reviewed for a position which may be suitable or which may be modified. There are many options for accommodating disabilities in the workplace, many of which cost very little. The option chosen should have the least disruption to the employee, however circumstances may be such that accommodation cannot be provided without disruption to the employee. In those cases, the employee has an obligation to accept a reasonable accommodation offer.
The following is a non-exhaustive list of the types of measures that can be considered, depending on the essential duties of the job, operational requirements, and individual needs:
- minor modification of job duties
- workstation and/or office modifications
- adjustments to organizational policies, procedures or practices that are inconsistent with human rights obligations
- provision of materials and communications in alternative formats and/or with communication support
- allowing the use of assistive devices and technical aids, which may include electronic equipment, such as large computer screen, specific software, etc.
- ensuring that individuals who are deaf or hard of hearing can make inquiries via email or another appropriate forum
- building modifications
- changes to scheduling or hours of work
- temporary or permanent alternative work as available
- unpaid leaves of absence
In many cases it will be necessary to monitor the success of the specific accommodation. It is necessary to review or modify accommodations as jobs, capabilities and functional limitations, and accommodation options change over time. Accommodations may also need to be reviewed periodically to assess the impact on the operations of the work unit.
Both employers and unions must cooperate when:
- implementing changes to the physical work environment or equipment and/or modifying how and when tasks are performed to enable the employee to achieve the objectives of their position
- modifying the employee’s job duties in a manner consistent with their individual capabilities for the employee to perform the essential tasks to achieve the objectives of their position
- exploring other available job opportunities within the employee’s home department in which they would be capable of performing the essential tasks of the position, with or without modifications
- exploring available job opportunities in other departments in which the employee would be capable of performing the essential tasks of the position, with or without modifications
If, after canvassing all the options, a request for an accommodation cannot be met, the employee may be placed on an unpaid leave of absence for a period of time while new opportunities and job vacancies are reviewed as they become available to identify a possible suitable accommodation.
Documenting the Accommodation Plan
Accommodation plans are documented by Disability Management and the requesting employee’s supervisor. The content of an accommodation plan will depend on the individual circumstances of each case. All accommodation plan documentation shall include:
- person(s) responsible
- person(s) who will be involved (including medical experts, co-workers, if applicable)
- the decision-making process used to develop the plan
- the timelines for putting the plan in place
- date of review, if applicable
- its duration and the nature of the follow-up evaluation
- acknowledgment of the workplace parties, confirming that each party understands and agrees to its/their obligations
The accommodation plan is provided to the employee in a format respecting any accessibility needs, as appropriate.
Privacy and Confidentiality
Management, Disability Management and union representatives are required to ensure that confidentiality is protected. Information obtained for the purposes of exploring the accommodation request must be kept in a secure location and used solely for the purpose it was obtained for.
When medical information is verified, Disability Management will communicate with management the non-confidential portions, which are the capabilities, limitations, restrictions, and anticipated duration of the accommodation. Disability Management will not disclose confidential medical information in its possession unless the employee consents to sharing such information.
Personal information concerning an employee’s disability cannot be released without the prior written consent of the individual, or where there is a legal requirement or exception by law that requires/authorizes the release of that information.
The Town will comply with all privacy, confidentiality, and security requirements of the Municipal Freedom of Information and Protection of Privacy Act or any other relevant legislation.
Assessing Undue Hardship and/or Denying the Request
Circumstances of the individual, the cooperation of the requestor, the success of accommodation attempts, and the ability to perform the essential duties of the job and performance difficulties will all be relevant to determining where the duty to accommodate ends. As such, the Town is not obligated to accommodate employees in cases where it can demonstrate accommodation is not possible or would result in undue hardship.
Definitions
Accommodation: Any adaptation or adjustment to rules, policies, practices, physical spaces, or situations that enable employees to perform their essential job responsibilities in accordance with the Ontario Human Rights Code.
Communication Supports: Include, but are not limited to, captioning, alternative and augmentative communication supports, plain language, sign language, and other supports that facilitate effective communications.
Discrimination: The denial of equal treatment in employment, based on the prohibited grounds as defined by the Code.
Disability: Under the Code, the term “disability” covers a broad range and degree of conditions. A disability may have been present at birth, caused by an accident, or developed over time. The Code defines it as:
- any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness, and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device
- a condition of mental impairment or a developmental disability
- a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language
- a mental disorder
- an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.
Essential Duties: The duties necessary to achieve the actual job outcome. The job outcome is the overall objective of the job in terms of the production of the final product or provision of service. The duty is essential if when you take the duty away: the job outcome is not accomplished; the product or service is affected; a process related to the job either before or after is affected.
Inclusive Workplace: Where all employees can contribute and participate in the workplace in a barrier-free environment.
Individualization: Designing accommodation to meet the current, specific circumstances of each employee.
Personal Assistive Devices: Personal supports used by persons with disabilities that enable them to carry out the activities of daily living.
Suitable Job: Employment consistent with the employee’s skills and functional abilities that does not pose a health and safety hazard to the employee, co-workers, or the public.
Undue Hardship: Refers not only to financial difficulty, but also accommodations that are unduly extensive or disruptive, those that would fundamentally alter the nature or operation of the business, or those that pose a health and safety risk to the employee, co-workers, or the public. Undue hardship does not arise because of other employees' or clients' fears or prejudices, or because providing a reasonable accommodation might have a negative impact on employee morale. Undue hardship may arise where a reasonable accommodation would be unduly disruptive to other employees' ability to work. An employer does not have to provide an accommodation that causes undue hardship, meaning significant difficulty or expense.
Responsibilities
Employer:
- Providing accessible, inclusive, barrier-free employment (programs, policies, procedures, systems, practices) that are compliant with Code and AODA requirements
- Minimizing the need for individual accommodation by regularly reviewing policies, procedures, and practices to ensure that they are not discriminatory
- Ensuring that all employees and job applicants are advised of their right to be accommodated
Management:
- Fostering an inclusive work environment by treating all employees and job applicants with respect and dignity
- Identifying and eliminating barriers that prevent people from accessing, or being included, in the workplace
- Being aware that an employee may need an accommodation even if they haven’t requested one
- Collaborating on the accommodation process by working with Disability Management, the employee and the union (where applicable) to assess requests in good faith, considering all options, resolving disagreements, and documenting, monitoring, and evaluating employment accommodation solutions
- Consulting with Disability Management when receiving a disability-related accommodation request
- Generating accommodation options based on the information provided about the employee’s accommodation needs
- Dealing with requests for accommodation in good faith and in a timely, confidential, and sensitive manner while respecting the dignity of the person requesting the accommodation
Employees:
- Identifying needs and initiating requests for accommodation
- Providing suggestions and assistance to support accommodation needs and the assessment of accommodation options/solutions
- Collaborating with experts when assistance is needed to manage the accommodation process
- Participating in good faith in the assessment and implementation of accommodation solutions
- Accepting an offer of accommodation that meets their capabilities and limitations
- Meeting performance standards and job requirements once accommodations are put in place
Disability Management/Human Resources:
- Providing advice, guidelines, and resources to management and employees regarding procedures for accommodations due to disability
- Providing advice to support management in the assessment and implementation of an accommodation
- Ensuring accommodation is incorporated into human resources polices, practices, etc.
- Providing accommodation guidance related to collective agreements and working with the Town’s unions to address collective agreement barriers
- Keeping a record of accommodation requests and documenting actions taken
- Dealing with requests for accommodation in a timely, confidential, and sensitive manner while respecting the dignity of the person requesting the accommodation
- Accommodations will be reviewed by Disability Management at least annually.
Unions:
- Participating and cooperating in the accommodation process and supporting reasonable efforts
- Working with the employer to address barriers in collective agreements
- Maintaining confidentiality and respecting the dignity of the person requesting the accommodation