A. Description and Rationale
Under the Code, organizations are required to prevent and remove barriers and provide accommodation to the point of undue hardship. The principle of accommodation arises most frequently in the context of creed, family status, sex (pregnancy), and disability, as well as age and gender identity.
Organizations, including their officers, managers, supervisors, and union representatives, have a shared obligation to design for inclusion of persons identified by Code grounds, as well as to remove barriers and provide accommodation. Failure to fully explore accommodation options and to fulfil the duty to accommodate is a violation of the Code.
A clear and effective accommodation policy and procedure ensures that accommodation seekers feel comfortable raising their accommodation needs, and that accommodation requests are effectively dealt with.
While accommodation is in most cases straightforward and simple, it can also be a lengthy and complex process. In any case, it is important that the accommodation process, as well as the accommodation itself, be effective and respectful of the dignity of accommodation seekers. Both accommodation providers and persons seeking accommodation benefit from clearly understanding their roles and responsibilities, and the accommodation process. Clear, fair and comprehensive accommodation policies and procedures help to ensure that organizations meet their duty to deal fairly, thoroughly and effectively with accommodation requests.
The standards and principles for accommodation are set out in the relevant Commission policies and guidelines, such as the Policy and Guidelines on Disability and the Duty to Accommodate, the Guidelines on Accessible Education, the Policy and Guidelines on Discrimination on the Basis of Family Status, the Policy on Creed and the Accommodation of Religious Observances, the Policy on Discrimination because of Pregnancy and Breastfeeding, and the Policy on Discrimination against Older Persons because of Age. Readers are advised to consult these documents for a fuller understanding of the standards and legal requirements regarding accommodation, and of accommodation issues related to particular Code grounds.
It should be noted that some accommodations are very simple and straightforward, and do not require a formal or complex process.
The manner in which an accommodation is provided and the methods by which it is implemented are subject to human rights standards. The principles of dignity, individualization, and inclusion and full participation apply both to the substance of an accommodation, and to the accommodation process.
At the heart of the accommodation process is the responsibility, shared by all parties, to engage in meaningful dialogue about accommodation, and to work together respectfully towards accommodation solutions. Everyone involved should co-operatively engage in the process, share information, and avail themselves of potential accommodation solutions.
PLEASE NOTE: The sample wording provided in the sections below is provided for an employment context, but may be modified to address housing or service contexts. The sample wording is provided only as an example. There is no single best policy or procedure, and policies and procedures should always be reviewed for compliance with current human rights law and policy and for appropriateness to the particular context.
1. Statement of Commitment
An Accommodation Policy and Procedure should include a clear statement of the organization’s commitment to providing an environment that is inclusive and barrier-free, and to providing accommodation to the point of undue hardship.
XYZ Organization is committed to providing an environment that is inclusive and that is free of barriers based on age, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex (including pregnancy and gender identity), sexual orientation, record of offences, marital status, family status, and disability. XYZ Organization commits to provide accommodation for needs related to the grounds of the Ontario Human Rights Code, unless to do so would cause undue hardship, as defined by the Ontario Human Rights Commission’s Policy on Disability and the Duty to Accommodate.
Accommodation will be provided in accordance with the principles of dignity, individualization, and inclusion. XYZ Organization will work cooperatively, and in a spirit of respect, with all partners in the accommodation process.
2. Objectives of the Policy and Procedure
The Policy and Procedure should have clearly identified objectives.
The purpose of this Accommodation Policy and Procedure is to:
- Ensure that all members of the organization are aware of their rights and responsibilities under the Ontario Human Rights Code with respect to accommodation;
- Set out in writing the organization’s procedures for accommodation and the responsibilities of each of the parties to the accommodation process.
3. Application of the Policy and Procedure
The Policy and Procedure should set out the scope of its application.
Accommodation should be provided, not only to existing employees, tenants or clients, but also to applicants for housing, employment or services. For example, employment applicants may require accommodation during the interview or screening process. Procedures should be developed to inform applicants of their right to accommodation for needs related to Code grounds, and to assure applicants that accommodation requests will not negatively impact the evaluation process. Similarly, in a service setting, accommodation policies and procedures should be prominently posted in a place that customers have regular access to, so that clients are aware of and able to make use of the Policy and Procedure.
This Policy and Procedure applies to all employees, including full-time, part-time, temporary, casual and contract staff, as well as those who work to gain experience or for benefits, such as volunteers, co-op students, interns and apprentices. It also applies to individuals who are applying for employment with the organization.
It applies at all stages and to all aspects of the employment relationship, including recruitment and selection, promotions and transfers, and conditions of work such as hours of work and leaves of absence.
It applies to all organization locations.
All new and existing employees will be provided with a copy of this Accommodation Policy and Procedure. All job applicants who are selected for an interview will be notified of the Accommodation Policy and Procedure prior to the interview.
4. Requests for Accommodation
It is very important to note that some individuals may be unable to disclose or communicate accommodation needs, due to the nature of their disability. For example, persons with some mental disabilities may be unaware of their accommodation needs, or may be reluctant to disclose them because of fear of stigma and stereotypes. Organizations should offer assistance and accommodation to persons who are clearly unwell and in need of assistance, or who are perceived to have a disability, even where no accommodation request is made.
While it may be preferable that accommodation requests be made formally and in writing, organizations should nevertheless take all accommodation requests seriously, regardless of the format of the request.
Requests for accommodation should be made to the employee’s manager.
Accommodation requests should, whenever possible, be made in writing. The accommodation request should indicate:
- The Code ground with respect to which accommodation is being requested;
- The reason why accommodation is required, including enough information to confirm the existence of a need for accommodation; and
- The specific needs related to the Code ground.
All accommodation requests will be taken seriously. No person will be penalized for making an accommodation request.
5. Provision of Information
The parties to the accommodation process must share information about accommodation needs and potential solutions. It may in some cases be necessary to obtain expert opinions or information in order to confirm the need for accommodation, or to determine appropriate accommodations.
Organizations should, however, be careful to collect only information that is necessary. In some cases, the need for accommodation is obvious and there is no need for special documentation: for example, persons who use wheelchairs will have difficulty accessing buildings that are approached by steps, and pregnant employees will often need more frequent bathroom breaks. Even where some documentation is required, this does not justify a “fishing expedition”. For example, a request for adjustments to computer equipment related to diminishing eyesight would not usually justify a request to review the accommodation seeker’s complete medical file. A careful approach to the collection of documentation not only protects the privacy of the accommodation seeker, it protects the accommodation provider from potential complaints. All parties must exercise good faith in seeking and providing information.
The policy should address the question of who collects and keeps documentation related to accommodation requests, taking into account the nature and complexity of the accommodation request, the sensitivity of the information involved, and the organizational capacity. Where a workplace has a medical or human resources department, that department should be the custodian of an employee’s medical or personal information, communicating to an employee’s supervisor not the details of the accommodation-seeker’s medical condition or personal situation, but rather, the duties the person can and cannot perform.
The manager, Human Resources Manager, or Medical Department may require further information related to the accommodation request, in the following circumstances:
- Where the accommodation request does not clearly indicate a need related to a Code ground;
- Where further information related to the employee’s limitations or restrictions is required in order to determine an appropriate accommodation;
- Where there is a demonstrable objective reason to question the legitimacy of the person’s request for accommodation.
Where expert assistance is necessary in order to identify accommodation needs or potential solutions, the accommodation seeker is required to cooperate in obtaining that expert advice. Any costs associated with obtaining such expert advice will be borne by XYZ Organization.
Failure to respond to such requests for information may delay the provision of accommodation.
The Manager, Human Resources Department or Medical Department will maintain information related to:
- The accommodation request;
- Any documentation provided by the accommodation seeker or by experts;
- Notes from any meetings;
- Any accommodation alternatives explored; and
- Any accommodations provided.
This information will be maintained in a secure location, separate from the accommodation seeker’s personnel file, and will be shared only with those persons who need the information.
6. Privacy and Confidentiality
Requests for accommodation may involve the disclosure of private or highly sensitive information. Persons requesting accommodation should be asked only for information required to establish the foundation of the accommodation request, and to respond appropriately to the accommodation request. In order for individuals to feel comfortable to make accommodation requests, they must feel confident that the information that they provide will be treated confidentially, and shared only as necessary for the accommodation process. It is generally advisable, in an employment context, to keep information related to accommodation requests separate from the individual’s regular personnel file.
The organization will maintain the confidentiality of information related to an accommodation request, and will only disclose this information with the consent of the employee or applicant.
7. Accommodation Planning
The accommodation process is a shared responsibility, and everyone involved must work together cooperatively, share information, and avail themselves of potential accommodation solutions. It is in everyone’s best interests that congenial and respectful relationships be maintained throughout the accommodation process.
It is helpful to document the accommodation process and the result in a formal accommodation plan. This ensures that the parties clearly understand their roles and responsibilities, and facilitates accountability and regular monitoring.
Accommodation requests will be dealt with promptly. Where necessary, interim accommodation will be provided while long-term solutions are developed.
The Manager, the person requesting accommodation related to a Code ground and, where appropriate, the Human Resources Manager and any necessary experts will work together cooperatively to develop an Accommodation Plan for the individual.
The Accommodation Plan, when agreed on, will be put in writing, and signed by the individual requesting accommodation, the Manager, and the Human Resource Manager.
- An Accommodation Plan may include the following:
- A statement of the accommodation seeker’s relevant limitations and needs, including any necessary assessments and information from experts or specialists, bearing in mind the need to maintain the confidentiality of medical reports;
- Arrangements for necessary assessments by experts or professionals;
- Identification of the most appropriate accommodation short of undue hardship;
- A statement of annual goals, and specific steps to be taken to meet them;
- Clear timelines for the provision of identified accommodations;
- Criteria for determining the success of the accommodation plan, together with a mechanism for review and re-assessment of the accommodation plan as necessary; and
- An accountability mechanism.
8. Appropriate Accommodations
Accommodation may take many forms. What works for one individual may not work for another. Each person’s situation must be individually assessed. In each case, the organization must implement the most appropriate accommodation, short of undue hardship. An accommodation will be appropriate where it results in equal opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges experienced by others, and where it respects the principles of dignity, inclusion, and individualization.
The aim of accommodation is to remove barriers and ensure equality. Accommodations will be developed on an individualized basis. Appropriate accommodations may include:
- Work station adjustments
- Job redesign
- Modifications to organizational policies and practices
- Technical aids
- Human support
- Provision of materials in alternative formats
- Building modifications
- Counselling and referral services
- Temporary or permanent alternative work
- Modification of performance standards
- Leaves of absence
- Changes to scheduling or hours of work
- Changes to work uniforms.
This list is not exhaustive.
9. Monitoring Accommodations
Accommodation needs and organizational structures may well change over time. As well, accommodations may require adjustments during and after implementation, in order to improve effectiveness or efficiency. It is therefore important to ensure regular monitoring and review of the accommodation plan.
The Manager and the person receiving accommodation shall monitor the success of the Accommodation Plan, and shall promptly address any deficiencies or any relevant changes in the workplace or the employee’s needs.
10. Undue Hardship
Accommodation must be provided to the point of undue hardship. It is the Commission’s position that, in assessing undue hardship, only the three legislated factors of cost, outside sources of funding, and health and safety may be taken into account. The standard for undue hardship is high, and the burden of proof is on the accommodation provider. Careful analysis and research is required prior to reaching the conclusion that a particular accommodation will result in undue hardship. The determination that an accommodation will cause undue hardship is a complex decision, with potentially significant legal consequences, and should therefore be made at the senior levels of the organization. The basis for this conclusion should be thoroughly documented, and the accommodation seeker provided with clear reasons for the decision.
The determination that a particular accommodation would result in undue hardship does not end the accommodation process. Accommodation is not an all-or-nothing proposition, and can be seen as a continuum. Where the most appropriate accommodation would result in undue hardship, the organization must consider other alternatives, such as phased-in or next-best accommodations.
Accommodation will be provided to the point of undue hardship, as defined by the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate. A determination regarding undue hardship will be based on an assessment of costs, outside sources of funding, and health and safety. It will be based on objective evidence.
A determination that an accommodation will create undue hardship may only be made by the Chief Administrative Officer of XYZ Organization.
Where a determination is made that an accommodation would create undue hardship, the person requesting accommodation will be given written notice, including the reasons for the decision and the objective evidence relied upon. The accommodation seeker shall be informed of his or her recourse under XYZ Organization’s Anti-Discrimination Policy and Procedure, and under the Ontario Human Rights Code.
Where a determination has been made that an accommodation would cause undue hardship, XYZ Organization will proceed to implement the next best accommodation short of undue hardship, or will consider phasing in the requested accommodation.
 In assessing whether the duty to accommodate has been met, the procedure to assess accommodation is as important as the substance of the accommodation. Meoirin, supra, note 6 at para. 66.
 Human rights statutes in some jurisdictions refer to “reasonable accommodation”. Despite the difference in wording, “reasonable accommodation” imposes the same requirements as “accommodation to the point of undue hardship” – the standard set out in the Ontario Code. As was stated by the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud  S.C.R. 970, at para. 19 “The extent to which the discriminator must go to accommodate is limited by the words “reasonable” and “short of undue hardship”. These are not independent criteria, but are alternate ways of expressing the same concept.”