In 2012, Statistics Canada reported that 11% of the population aged 25 to 64 (or 2.1 million people) reported having limitations caused by a physical or mental disability, with conditions ranging from hearing loss, to visual impairment, to mobility challenges, to pain, to mental health conditions. As our population ages, disability-related conditions are only projected to increase. In light of these statistics, and given that many Canadians will spend most of their day in the workplace, knowing how to accommodate employees in the workplace has become a key part of managing today’s workforce and employees knowing what role they are responsible for playing is also a critical factor for both employers and employees.
The accommodation process is a multi-party process and employees are not without their own obligations with respect to accommodation. Employees, generally, have three fundamental duties in that regard:
- to make a request for accommodation when accommodation is needed (with requests in some cases being constructive or reasonably assumed in the circumstances);
- to disclose relevant information, such as medical information, to assist the other parties (which may include the employer and the union) in the accommodation process in making and facilitating reasonable accommodations; and
- to act reasonably.
With respect to the third duty, the law has been consistent that an employee cannot expect the perfect accommodation, only a reasonable one. Where the employer has proposed a solution that is reasonable and that would accommodate an employee’s abilities, limitations, and restrictions, the employee has a duty to facilitate the implementation of that solution. If a solution proposed by the employer is reasonable, and the employee rejects that proposal, then the employer’s duty to accommodate the employee is discharged.
These principles have led to a number of employer-supported decisions, including cases finding that:
- an employee’s refusal to participate in an independent medical examination justified termination of employment when the employer had no other ability to determine if the employee was fit for work, with or without limitations, for the foreseeable future;
- an employee may be required to accept reduced hours as part of the accommodation process;
- an employee is not entitled to be paid at a higher pre-accommodation rate if the rate associated with the accommodated work is lower;
- an employer is entitled to depend upon the medical information that it has when an employee fails to provide up-to-date medical information;
- an employer is not obligated to invent new positions and can look to available vacant positions when exploring reasonable accommodations with an employee;
- if an employee’s condition has changed, then it is incumbent upon the employee to share that information with the employer to reassess available accommodations; and
- although part of a reasonable accommodation may include the right of employees to be absent from work due to a disability, this right is not unlimited and an employer is not obligated to keep open a position for an employee who has been unable to work for an excessive period and unlikely to return to work in the reasonably foreseeable future with or without accommodation.
In all of these cases, effective, written communication was critical to the employer’s success and the employer could establish that it had clearly engaged in a meaningful dialogue with the employee making reasonable inquiries, setting out expectations, and demonstrating the steps taken, or the steps attempted, to accommodate the employee. Employers are, therefore encouraged, to continuing the conversation, which may involve reminding employees of the proverbial phrase that it takes two to tango.