Accommodations Under Ontario’s Human Rights Code

Purpose statement

The Town of Oakville is committed to providing an inclusive workplace that supports employee sense of belonging and that is also free from discrimination as required under the Town’s Respectful Conduct Policy and Ontario’s Human Rights Code (Code). This procedure has been established so that employees and all workplace parties are familiar with their roles and responsibilities as they relate to the process of exploring and assessing requests for accommodation related to a protected ground of the Code. Request for accommodations for disabilities fall under the Accommodations for Employees With Disabilities 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 up to the point of undue hardship. This includes:

1. to ensure every effort is made to accommodate an employee in need of accommodation in their own job;
2. to provide accommodation in an existing alternative job vacancy in the Town if unable to accommodate the employee in their own job; 
3. to ensure all work is performed in a manner which is safe for the employee, their co-workers, and the public; and,
4. to ensure that the work performed is meaningful work.

Scope

This procedure applies to all new and existing 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 Human Resources to help identify existing and/or potential barriers.

Accommodation Request

It is the employee’s responsibility to trigger the accommodation process by notifying their manager and Human Resources and to make their accommodation needs known as far in advance as possible from when the accommodation is likely required. This is to provide management sufficient time to consult with the employee in order to explore and respond to the request. Exploring accommodation requests can sometimes 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 limitations, needs, or restrictions that impact their ability to apply for work or perform their job. Requests for accommodation should be submitted in writing to their manager and Human Resources Consultant using the confidential General Accommodation Request Form. The completed form should be accompanied by supporting documentation that is verifiable. Examples of verifiable documentation include a court sanctioned custody agreement setting out child-care responsibilities or letter from a faith leader outlining religious tenet. Employees are encouraged to contact the appropriate Human Resources Consultant for consultation and support as needed.

Assessing the Accommodation Request

Management will work with Human Resources to explore and provide accommodation to the extent necessary. Management and Human Resources 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 limitations, needs, or restrictions after the initial request for accommodation. The Town has a right to request supporting documentation outlining limitations, needs, 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 limitations, needs, and restrictions and remaining flexible in considering reasonable accommodation solutions. If an employee does not cooperate by providing requested documentation in a timely manner, an accommodation may not be put in place until information is received supporting and outlining the limitations, needs, and restrictions that need to be accommodated. 

Human Resources 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 Human Rights Code-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, Human Resources may determine that there is insufficient supporting documentation. 

There may be no requirement for accommodation if:

• the request is not linked to a protected ground of the Code
• there is not sufficient objective documentation to support the request
• the limitations, needs or restrictions, 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)

Human Resources along with management must be able to demonstrate that the accommodation process was undertaken in good faith and provide evidence or rationale to support denying a request. 

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 limitations, needs, and restrictions. 
• 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 at least annually.

Accommodation Options

Accommodation will be provided in a manner that respects the dignity of individuals. Human Resources 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 individuals 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 
• adjustments to organizational policies, procedures or practices that are inconsistent with human rights obligations
• changes to scheduling or hours of work
• temporary or permanent alternative work as available
• unpaid leaves of absence

There is no obligation on the part of the Town to pay for leave required as part of an accommodation beyond existing leave provisions that form part of the employment contract, the collective agreement, or as otherwise may be required by law. 

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, limitations, needs and restrictions, 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 work environment 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 limitations, needs or restrictions, 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 Human Resources 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 external 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, Human Resources 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. 

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 cause undue hardship.

Definitions

Accommodation:  Any adaptation or adjustment to rules, policies, practices, or situations that enable employees to perform their essential job responsibilities in accordance with the Code. 

Discrimination: The denial of equal treatment in employment, based on the protected grounds as defined by the Code. 

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. 

Protected Grounds: The Code prohibits actions that discriminate against people based on a protected ground in employment. These protected grounds are:

• Age
• Ancestry, colour, race
• Citizenship
• Ethnic origin
• Place of origin
• Creed
• Disability
• Family status
• Marital status (including single status)
• Gender identity, gender expression
• Receipt of public assistance (in housing only)
• Record of offences (in employment only)
• Sex (including pregnancy and breastfeeding)
• Sexual orientation

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 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 are advised of their right to be accommodated

Management:

• Fostering an inclusive work environment by treating all employees with respect and dignity
• Identifying and eliminating barriers that prevent people from accessing, or being included, in the workplace
• Collaborating on the accommodation process by working with Human Resources, 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 Human Resources when receiving a Code-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 limitations, needs, and restrictions.  
• Meeting performance standards and job requirements once accommodations are put in place

Human Resources:

• Providing advice, guidelines, and resources to management and employees regarding procedures for accommodations due to Code-related protected grounds
• 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

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