Disclaimer: The content in this document is provided for information purposes only. It should not be interpreted as legal or other professional advice.
Human rights accommodations are based on the idea that everyone should have the same rights and freedoms, no matter their race, gender, disability, religion, or other personal characteristics. Sometimes to treat people fairly, we must treat them differently. Accommodations recognize that people have diverse needs and may require different level of supports in order to fully, and equitably, participate. These accommodations are important because they help address systemic forms of oppression that may prevent some people from fully participating in their environment.
For information on how to request accommodations, please review this guide.
What is the Duty to Accommodate?
In Newfoundland and Labrador, employers and service providers have a duty to accommodate human rights related needs, up to the point of undue hardship. This is indicated in the Human Rights Act.
Employers are not obligated to accommodate requests unrelated to a protected ground, such as a preference to leave early to attend a child’s sporting activity. Accommodations should work for both the employee and the employer. Accommodations can be requested at any time, including before an interview, after accepting a job offer, during onboarding, or anytime the need for an accommodation arises.
Practical Accommodations
Accommodations can look very different depending on the situation and the person’s individual need. The following are some examples of accommodations based on prohibited grounds:
- Religious accommodation: Adjusting break times to allow employees to attend prayers
- Family status: Flexible scheduling to accommodate changing childcare needs
- Pregnancy-related accommodation: Modifying tasks to avoid heavy lifting or exposure to harmful substances
- Physical disability: Providing assistive technology or altering job duties due to physical limitations
- Mental health accommodation: Adjusting workload or offering additional breaks to support employees with mental health conditions
Accommodation needs and operational requirements may change over time. Considering this, accommodations must be monitored and adjusted, as needed, based on changes in the circumstances of the employee, employer and the workplace.
What are Protected Personal Characteristics?
The Human Rights Act prohibits discrimination on the basis of personal characteristics. A person is either born with these personal characteristics or they acquire them later in life. These characteristics are also called prohibited grounds. These characteristics are:
- Age
- Association
- Colour
- Disability
- Disfigurement
- Ethnic origin
- Gender expression
- Gender identity
- Family status
- Marital status
- Nationality
- Religious creed
- Religion
- Source of income
- Perceived disability
- Political opinion
- Sex
- Sexual orientation
- Race
- Retaliation
- Criminal conviction (employment only)
Overview of Duties and Responsibilities
Both employers and employees have duties and responsibilities during an accommodation process. The Ontario Human Rights Commission outlines these responsibilities:
Employees
- Must request accommodation and explain why accommodation is required
- Make their needs known to the best of their ability, preferably in writing
- Answer questions or provide information about relevant restrictions or limitations, including information from health care professionals
- Actively take part in discussions on possible accommodation solutions
- Co-operate with any experts who are consulted
- Work with the employer on an ongoing basis to manage the accommodation process
- Discuss accommodation needs only with persons who need to know
Employers
- Accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
- Get expert opinions or advice where needed
- Keep a record of the accommodation request and action taken
- Maintain confidentiality
- Grant accommodation requests in a timely manner
- Consider paying the cost of any required medical information or documentation
- If an accommodation would cause undue hardship, explain this clearly to the employee and be prepared to show why this is the case
Unions can also play a role in the accommodation process for employees, particularly when it comes to ensuring fair treatment and advocating for employee rights. For instance, unions representatives can:
- take an active role as partners in the accommodation process
- share responsibility with the employer to facilitate accommodations, including taking an active role in suggesting and testing alternative approaches, and cooperating fully when solutions are proposed
- respect the privacy of the person requesting accommodation
- support accommodation measures no matter what collective agreements say, unless doing so would create undue hardship
If an employee is working within a unionized workplace, it is best for employers to inform that they can contact their union representative for support throughout the accommodation process, if needed.
Managing Accommodation Requests
Employers should be prepared to have open and constructive conversations with employees who request accommodations. When discussing accommodation requests, the following should be considered:
- Understanding the Need:
Employers should ensure they understand the employee’s limitations and explore possible accommodation options. Employers do not need to know specific diagnosis. - Requesting Documentation:
Employers can request supporting documentation (such as a medical note) that confirms the need for accommodation. It would also be appropriate for this documentation to outline how long the accommodation is needed. - Evaluating Options:
Employers should assess the accommodation request based on operational needs but consider flexibility and creativity when evaluating possible solutions.
What Does a “Reasonable Accommodation” Mean?
In Newfoundland and Labrador, a reasonable accommodation is one that helps the employee do their job tasks while also considering the needs of the employer. Reasonable accommodations might include:
- Changing work hours or job duties
- Providing assistive devices or technology
- Making temporary or permanent changes to work location or schedule
If a reasonable solution for an accommodation cannot be found, keep the conversation open. Try to understand their needs more clearly and see if there are other potential accommodations that might work.
This could include offering other forms of support, such as modified duties, a temporary leave, or assistance in finding a different role within the organization that better suits their needs.
Undue Hardship
Employers are required to provide reasonable accommodations up to the point of undue hardship. Undue hardship may include significant financial costs or operational disruption that would be caused by the accommodation, if implemented, making it impractical. However, some hardship may be necessary when making an accommodation. Some factors to consider when assessing undue hardship include:
- Financial costs
- Size and resources of the organization
- Morale of other employees
- Disruption to operations
- Health and safety concerns
Employers are expected to make every reasonable effort to accommodate the employee and should only conclude that undue hardship would occur after thoroughly evaluating the situation. Even when undue hardship is reached, alternative options that would not create such hardship should be explored.
The Human Rights Commission can’t tell you what to do, or when hardship is reached, as it is different for everyone depending on operational requirements and individual needs.
Medical Information
To accommodate an employee’s needs effectively, employers can request certain types of medical information, but only what is necessary to understand the employee’s limitations.
Medical Notes
Medical notes provide formal documentation of an individual’s health condition or disability. This helps the employer understand the specific accommodation needs of the individual, the limitations they experience, and why accommodations are necessary. Without this documentation, it may be difficult to determine the appropriate accommodation and ensure an equitable environment. Employers can ask:
- whether the condition or injury is permanent or temporary
- how long the accommodation will be needed for
- what restrictions and limitations an employee has
- and whether a treatment or medication the employee is taking will affect the employee’s ability to perform job duties.
The employer can only ask for information that’s needed to decide on accommodations, disability leave, or if the employee can return to work. The employer should not need to know the specific diagnosis.
Sick Notes
If an employee has missed a number of workdays, and their absence is interfering with operational requirements, it may be appropriate to ask for a sick note to excuse absence. Unfortunately, not everyone has easy access to medical care, and some individuals may face challenges in getting an appointment with a doctor or specialist who can provide a note. It is important for both parties to work together to navigate these difficulties.
If you are looking to terminate someone because of their absences, it is important to determine if their absences are because of a disability-related illness or not. Termination must be approached carefully and be in compliance with both the Labour Standards Act and the Human Rights Act.
The Human Rights Commission can’t tell you when it is or is not appropriate to terminate an individual’s employment. We provide information and hope that is considered in the decision-making process.
Withholding Information
If the employee refuses to provide information to the employer, then the employer is relieved of their duty to accommodate. Both the actions of the employee and the employer will be considered when assessing allegations of discrimination.
Documentation and Confidentiality
Employees are entitled to privacy regarding their medical or personal information. Employers should only ask for the information needed to evaluate the accommodation request. They must ensure that any medical or personal information is documented and handled with confidentiality.
Suggestion: Keep record of all discussions including attempts at accommodations, and if applicable, reasons for why a reasonable accommodation wasn’t found. This helps ensure transparency and may be important if the issue escalates to a human rights complaint.
Accommodation Policies
Workplaces are expected to have accommodation policies and procedures in place. Unions and employers should work together to make sure that policies are developed and advertised so that employees know their rights and how to exercise them in the workplace. It also helps employees understand what is expected of them and what the process involves before they request accommodations. The Canadian Human Rights Commission has developed a resource for employers looking to develop an effective accommodation policy. More about this resource can be found here: Developing a Workplace Accommodation Policy
Human Rights Inquiry Process
Discrimination means treating someone unfairly because of one of their protected personal characteristics. Discrimination imposes burdens, disadvantages or limits access to opportunities. Discrimination can take many forms including harassment and a failure to accommodate.
When people feel they have been discriminated against or harassed in Newfoundland and Labrador, they can submit an inquiry with the Human Rights Commission. This inquiry will be assessed through the Human Rights Act to determine how, and if, we can support.
The Commission recognizes there are other ways to resolve human rights conflicts. Not all inquiries become human rights complaints. If you are interested in filing an inquiry to see how we can support you, complete the following form: Inquiry Form – Human Rights Commission
Although this guide is developed to provide information, employers and service providers can continue to contact the Commission if they have questions about the duty to accommodate or any other human rights related concerns.
The Commission offers free presentations on these topics for any interested organizations, groups, or individuals. If you would like to discuss scheduling a presentation, please contact us at humanrights@gov.nl.ca or fill out the following form: Request a Presentation on Human Rights – Human Rights Commission.
References
Alberta Human Rights Commission. (n.d.). Requesting accommodations in the workplace. Alberta Human Rights Commission. https://albertahumanrights.ab.ca/media/q5dgzbot/english-requesting-accommodations-in-the-workplace.pdf
Canadian Human Rights Commission. (2017, March). Policy template for accommodation. https://www.chrc-ccdp.gc.ca/sites/default/files/publication-pdfs/ottawaiti7-2517744-v4a-policy_template_for_accommodation_march_2017_final-s_0.pdf
Ontario Human Rights Commission. (n.d.). Meeting accommodation needs
of employees at work. Ontario Human Rights Commission. https://www3.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/8-meeting-accommodation-needs-employees-job