What is the duty to accommodate?
The duty to accommodate is a statutory obligation imposed on the employer to adjust working conditions so that employees identified in one or more of the prohibited grounds under the CHRA can continue working. The statutory duty to accommodate is required to the point of undue hardship. This means that the most appropriate, i.e. reasonable, accommodation must be determined and implemented to the point of undue hardship.
Undue hardship is a high standard that can take into account financial costs, sources of funding and health or safety risks. Each case is to be assessed on its own merits.
The duty to accommodate generally follows an accommodation request from an employee. Although in the employment context the duty to accommodate often involves a disability component, it is important to remember that this duty applies to all protected grounds found in section 3 of the CHRA such as creed, religion, sex or family status, for example.
The duty to accommodate may very well result in different treatment of some employees in order to attain equality and eliminate a negative treatment stemming from an employment policy or practice (“workplace barrier”) that is not intended to be discriminatory in nature in its application.
For instance, even though no employees in a given office may be permitted to telework, an employee with a specific disability could be granted teleworking rights in order to comply with his/her functional limitations. This accommodation is intended to allow the employee to complete assigned duties they might not otherwise be able to do without accommodation.