Accommodation in the Workplace: HRTO Rules Against Employee
In a recent accommodation case, Joseph v. Tecumseh Community Development Corporation (2019 HRTO 635), the Human Rights Tribunal of Ontario (HRTO) ruled in favour of the employer once it became clear the employee failed to participate in the accommodation process. The employer in this case, Tecumseh Community Development Corporation (TCDC), on several occasions, requested that the employee, who was on leave at the time, provide medical documentation from their physician. But, the employee never produced the requested information until the human rights complaint against the employer was filed, which occurred shortly after she was fired.
The tribunal concluded that the employer had a duty to conduct an individualized investigation of appropriate accommodation measures, and a thorough assessment of the employee’s needs, and satisfied this duty accordingly. The tribunal also concluded that the employee failed to demonstrate that she had a valid need for accommodation by providing the appropriate medical documentation to the employer in a timely manner. This decision can help shed light for employers in need of guidance on accommodation, and those in difficult situations such as terminating an employee with a disability, or one seeking an accommodation.
To learn more about this ruling, see this informative article titled “Accommodation is A Two-Way Process”, by Jennifer Costin, Siskinds LLP http://www.mondaq.com/article.asp?articleid=834358&email_access=on
What Employers can do for Due Diligence:
According to a policy from the Ontario Human Rights Commission on preventing discrimination based on mental health, disabilities, and addictions, in order to best prepare for an accommodation, employers should:
- Understand that the duty to accommodate is informed by three principles: respect for dignity, individualization, and integration and full participation.
- Be aware that the duty to accommodate mental health disabilities is no less rigorous than the duty to accommodate physical disabilities.
- Understand that each and every accommodation case is unique and should be treated accordingly.
- Work with an expert accommodation provider or Occupational Therapist on an ongoing basis to manage the accommodation process.
- Accept requests for accommodation in good faith, and take an active role in exploring traditional, and alternative solutions.
- Conduct open discussions about possible accommodation solutions to gain more insight.
- Be aware that an accommodation may be necessary even in cases where the employee has not made a formal request.
- Implement accommodations in a timely manner.
- Be discreet, respectful, and maintain trust and confidentiality.
How Gowan Consulting Can Help:
- Provide support for policy and procedures development.
- Train managers and employees on the duty to accommodate.
- Provide objective Occupational Therapy assessments for accommodation requests.
If you would like to learn more about workplace accommodations, please check out our services for Providing Early Intervention and Return to Work planning.
Gowan Consulting has many resources to assist employees with accommodation concerns.
If you’d like to learn more about workplace accommodations or return to work, book one of our upcoming fall workshops today to secure your spot, and take advantage of our early-bird pricing!
- RTW Facilitation Skills Workshop happening this November 11-13, in London ON
- Mental Health and Return to Work happening this September 24-25, in Mississauga ON
Want to know how we can assist you personally in the workplace? Contact Us!
“Accommodation is A Two-Way Process”, by Jennifer Costin, Siskinds LLP
Joseph v. Tecumseh Community Development Corporation, 2019 HRTO 635 (Ont. Human Rights Trib.).
Policy on preventing discrimination based on mental health disabilities and addictions