In Canada, the duty to accommodate is based on several sources in law: the applicable human rights legislation (the Canadian Human Rights Act and equivalent provincial legislation), equality rights legislation (the Canadian Charter of Rights and Freedoms and the Employment Equity Act or equivalent provincial legislation), and human rights jurisprudence.
In a recent case, the Supreme Court of Canada has radically changed and broadened the meaning of accommodation. In the Meiorin14 decision, the court clarified the duty of employers to take every step available to them, to the point of undue hardship, to ensure that all their programs and activities are inclusive of the needs of a diverse workforce. Prior to this decision, employers and providers of goods, services and facilities were only required to solve accommodation problems as they arose, on an individual basis, as the problem of a particular individual, not of society. Now, as a result of the Meiorin case, employers and providers of goods, services and accommodation are required to proactively review all their programs and activities, including policies, rules, practices, standards, procurement and decisions related to real property, and, to the extent possible, eliminate any existing discriminatory barriers. In other words, they are required to set up their workplaces in such a way that accommodation and access problems do not arise in the first place. What does this mean for employers and building managers? It means that they should ensure that their workplaces and facilities are fully accessible for people with a wide range of disabilities, including environmental sensitivities.
Put simply, the duty to accommodate refers to the obligation of an employer or union or service provider to make every effort, short of undue hardship, to accommodate and eliminate disadvantage to an employee or prospective employee resulting from a rule, practice or physical barrier that has or may have an adverse impact on individuals or groups protected under human rights legislation, or identified as a designated group under employment equity legislation.
In practice, accommodation requires an individual assessment of the needs of the employee requesting it. In some situations, if the needs of individuals are similar to those of others, it may be possible to establish general policies or practices to accommodate those needs. These accommodation policies and practices could require changes in the terms and conditions of employment to meet the particular needs of the individual or group in question. This may also mean a change in work schedules or special job support, equipment or assistance or a change in job duties. What is needed must be decided with all the relevant parties' participation: the employee, the employer, the unions, co-workers and building managers.
Undue hardship is a high standard to meet. Accommodation measures are to be taken unless no further accommodation is possible without causing undue hardship to the employer. The onus is on the employer to establish that further accommodation or certain accommodation options would have such a serious impact on the workplace that the needed accommodation should not be required. The Canadian Human Rights Act provides that "health, safety and cost" are the relevant criteria to determine undue hardship. Provincial legislation contains similar criteria. For example, the Ontario Human Rights Code refers to “cost, outside sources of funding, if any, and health and safety requirements”.
Further, the courts have held that there are several factors that may be considered in determining whether a particular accommodation would cause undue hardship, including cost, safety risks, employee morale issues, disruptions of collective agreements, interchangeability of the workforce, facilities, and seniority rights. The case law has been clear that minimal efforts are not sufficient nor does minor inconvenience constitute undue hardship.
As a manager, it may occur to you that it is unfair to other employees to give one employee "special treatment". You may think that morale will suffer if you give special treatment to some and not others. You may also be concerned about cost.
Accommodation is not a favour or a courtesy. It is the law. It is not a lowering of standards but a recognition that circumstances may require some fine-tuning to support individual performance on the job. The accommodation requested by an employee who has environmental sensitivities may, in fact, benefit everyone, by improving the environment for all employees, or by providing an open forum for employees, managers, and building managers to explore better ways to work together. Statistics show that the average cost for accommodation for an employee is minimal.15 Many forms of accommodation for employees with environmental sensitivities will have no cost impact at all, or may actually result in a cost savings.
In addition to the protections provided by human rights laws, health and safety legislation and jurisprudence may assist workers who have environmental sensitivities. Under the Canada Labour Code, Part II and provincial labour legislation, employees have the right to refuse to work in a place that they believe is dangerous to the employee or to another employee. Provincial statutes contain parallel provisions.
Under federal16 occupational safety and health regulations, heating, ventilation and air-conditioning (HVAC) systems are required to meet the design requirements of the ASHRAE Standard 62–2001: Ventilation for Acceptable Indoor Air Quality. Further, federally regulated employers are required to appoint qualified people to provide instructions for operating, inspecting, testing, cleaning and maintaining the HVAC system,17 and to develop procedures for air quality investigations in circumstances where the safety or health of an employee is or may be endangered.18 A federally regulated employer is also required to post the telephone number of a contact person to whom safety or health concerns regarding indoor air quality in the workplace may be addressed.19
Duty to Accommodate | Relevant Health and Safety Precautions
