A clear policy can prevent legally difficult scenarios before they arise
Employers in Canada have many legal obligations when it comes to employing workers, including the requirement to establish certain workplace policies. In addition to those that are legally required, many employers choose to implement other policies to help govern their workplace, such as an attendance and absenteeism policy.
However, employers often overlook the value of having a clear workplace accommodation policy, which can form a key addition to an organization's Personnel Manual or Employee Handbook.
What is an accommodation policy?
An accommodation policy typically sets out an employer's process for receiving and responding to requests for accommodation from employees, and may also provide an overview of the rights and entitlements of both the employer and the employee throughout the accommodation process.
The purpose of the policy is to educate staff and outline the core steps that will be followed when a request for accommodation is received. It is not to implement a one-size fits all response to requests for accommodation or to make pre-determinations about what accommodations are reasonable or what will constitute undue hardship.
Why have an accommodation policy?
You may be legally required to implement one: If you are an employer in Ontario with 50 or more employees, the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) requires that you have a written process for the development of individual accommodation plans for employees with disabilities. The AODA identifies specific elements that must be included in such a process, including:
- how an employee requesting accommodation can participate in the development of the individual accommodation plan
- the means by which the employee will be assessed
- the steps taken to protect the privacy of the employee's personal information
- the frequency with which the individual accommodation plan will be reviewed and updated.
Employers must also develop a return-to-work process outlining the steps that they will take to facilitate the return to work of employees who had to take a leave because of their disability, and identify how documented individual accommodation plans will be used as part of the return-to-work process.
Although small employers (with fewer than 50 employees in Ontario) are not required to have such policies in writing, the reality is that all employers are subject to the general duty to accommodate employees pursuant to human rights legislation, such as the Ontario Human Rights Code. Even a small employer may receive, and be expected to address, a request for accommodation.
This is also not limited to requests for accommodation on the basis of disability, as contemplated in the AODA — membership in any protected ground established by human rights legislation can form the basis for a request for accommodation. As a result, all employers will want to consider what they will do in the event they receive such a request. Establishing a policy is a helpful way for employers to plan ahead for such instances and set the ground rules ahead of time.
Establishing a clear process for employees to follow: Similarly, an accommodation policy can help set a clear roadmap for your employees with respect to the accommodation process. Not only does this policy demonstrate to your staff that your business is committed to meeting its obligations under human rights legislation, it can also address basic administrative issues such as who an employee should contact if they need accommodation and what information the company may need in support of that request.
You can also use your policy as an educational tool for staff with respect to the realities of accommodation; in particular, that it is a cooperative process requiring participation from both the employer and the employee, and that an employee is not entitled to the accommodation of their preference. Establishing such basics up front can make the entire process of accommodation less stressful for all parties.
Educating leaders on how to respond to a request for accommodation: Your policy can also provide guidance to managers and HR about what they should do in the event that an employee comes to them with a request for accommodation. This can help businesses to ensure that their leaders are responding in a way that aligns with the company's legal obligations and values by alerting them that there is a process they are expected to follow.
A clear policy can prevent legally difficult scenarios before they arise, such as where a request for accommodation is summarily rejected due to lack of awareness on the part of the manager receiving the request.
Managers and supervisors also have a responsibility to be alert to sudden or unexplained changes in the behaviour or performance of their staff. When a formerly excellent performer suddenly declines, there may be an underlying cause that could trigger the duty to accommodate. In cases like this, employers may have a duty to inquire as to whether there is anything happening in the employee's non-work life that could be impacting their performance at work.
Educating your managers about this responsibility via a policy, coupled with training, can go a long way to ensuring that your business is compliant with its legal obligations.
Key takeaways
The duty to accommodate can be challenging for employers to navigate, and the consequences for getting it wrong can be significant. Establishing a policy that is informative and defines a core process for when accommodation requests are received can be a crucial tool to set expectations and mitigate against potential legal pitfalls.
We regularly work with employers to design and implement such policies. If you want to add an accommodation policy, or any other policies, to your Personnel Manual, please contact us to discuss how we can assist you.
