By: Stephanie McDonald and Baljinder (Bal) Singh Tiwana
In Ontario, employers have a legal obligation to accommodate employees with disabilities to the point of “undue hardship.” This obligation is set out in the Ontario Human Rights Code (the Code).
The duty to accommodate aims to remove barriers that disproportionately disadvantage people with disabilities. Effective accommodation can take many forms to assist employees with performing their job duties effectively, as explained in more detail below.
Failure by an employer to reasonably accommodate an employee with a disability—especially when it substantially impacts their ability to work—may give rise to a legal claim against an employer.
In this article, we discuss the “duty to accommodate disabilities” in the workplace in Ontario, and what you should do to support your request to be accommodated in the workplace.
1. What is a “Disability” under the Ontario Human Rights Code?
The definition of “disability” under the Code is broad and includes both physical and mental conditions. Importantly, the Code aims to protect against discrimination in the workplace, based not only on actual disabilities but also on past, future, or perceived disabilities.
For example, if you were denied a job because a prospective employer believed you had a disability—even if you did not—you could still have a legal basis for a claim.
Definition of “Disability”
“Disability” is defined under Section 10 of the Code as:
- Any degree of physical disability, infirmity, malformation, or disfigurement caused by bodily injury, birth defect, or illness (e.g. diabetes, epilepsy, brain injury, paralysis, amputation, visual or hearing impairments, reliance on a wheelchair, etc.)
- A condition of mental impairment or developmental disability
- A learning disability or dysfunction involving understanding or using symbols or language
- A mental disorder
- An injury or disability for which WSIB benefits were claimed or received
This is a non-exhaustive definition, and courts or tribunals may interpret it to include a wide range of conditions.
2. What is the “Duty to Accommodate”?
The duty to accommodate refers to an employer’s obligation to make reasonable adjustments to remove barriers that adversely affect employees based on a “disability.”
The goal of the Code is to ensure that employees with disabilities have equal access, opportunities, and benefits in the workplace, and are not unfairly excluded. In doing so, the Code promotes inclusive, diverse, and discrimination-free workplaces.
To trigger the “duty to accommodate’” employers must accommodate employees adversely affected by a:
- Requirement
- Rule
- Standard
These accommodations must be provided up to the point of undue hardship, balancing the employee’s needs with the employer’s operational realities.
It is significant to note that, each case is assessed on an individual, case-by-case basis.
Cooperation is Key
Employees are generally expected to cooperate in the accommodation process. Employers should have enough information to understand the nature of the disability, while employees must be transparent (within reasonable limits) about their accommodation needs.
As the Supreme Court of Canada has stated:
“… the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship…”
3. What is “Undue Hardship”?
Employers are not required to accommodate where doing so would cause undue hardship. However, the threshold for triggering undue hardship is very high.
The Code outlines three primary factors in assessing whether undue hardship applies:
I. Cost – Accommodation must be provided unless it causes significant financial strain. Employers must consider whether costs are reasonable, and whether funding assistance is available.
II. Outside Sources of Funding – Employers must explore external financial support, such as government grants or subsidies, to help fund accommodations.
III. Health and Safety – If an accommodation would likely pose a serious risk to the health and safety of others in the workplace, it may amount to undue hardship. However, risks must be real and substantial, and not merely hypothetical.
The Code reflects that the duty to accommodate should be balanced with the genuine health and safety obligations of the employer.
4. What Types of Accommodations May Be Required?
Examples of reasonable accommodations include:
- Modifying job duties or offering alternative work
- Implementing assistive technologies
- Adjusting work hours or offering flexible schedules
- Providing accessible physical workspaces (e.g. ramps, ergonomic furniture etc)
- Adapting training methods
- Modifying workplace policies
The appropriate accommodation will vary depending on the individual’s specific needs and the nature of the work.
5. Am I Entitled to the Accommodation I Prefer?
No, the law does not guarantee that you’ll receive your preferred accommodation.
Employers must provide an accommodation that is effective and reasonable, not necessarily the one the employee requests, as long as the solution meets the employee’s needs without causing undue hardship.
6. What Can I Do to Support My Request for Accommodation?
To support your request, consider these key steps:
a. How to Prepare:
- Consult your doctor or health professional for documentation
- Gather relevant medical information to support your request
- Communicate in writing with your employer (email is ideal for record-keeping)
- Speak to an employment lawyer, particularly if you encounter resistance or denial by your employer
b. What Medical Information Should I Provide?
Your employer is only entitled to the minimum necessary information to evaluate your accommodation request. This may include:
- Confirmation that a disability exists
- Functional limitations that impact your ability to perform job duties
- Expected duration (if known)
It is imperative to note that employers do not need your diagnosis or detailed medical history to trigger the duty to accommodate or to justify your accommodation request.
Conclusion
At Workplace Sage Legal, we are committed to supporting employees with disabilities who feel that their accommodation needs are not being met in the workplace. If your employer has failed to meet their legal obligations under the Code, or you’re struggling to perform your duties because of a lack of support from your employer, please reach out for legal advice. You may have options—and rights—that deserve to be protected.
DISCLAIMER: This article/blog is provided for educational/informational purposes only. The views expressed are solely those of the author(s) and should not be attributed to any other party not listed as the author(s).
While reasonable efforts have been made to ensure the accuracy of the content provided, it does not constitute legal advice. Prior to relying on any aspect of this article, you should consult with a suitably qualified legal professional promptly in your relevant jurisdiction, to obtain advice tailored to your individual circumstances
Nothing in this article should be interpreted as forming a solicitor-client relationship or construed as a solicitation for legal services.
