Duty to accommodate at work

People who need accommodation because of a protected ground, such as a disability, can request accommodation. For example, this can include:

• employees or job candidates
• union members
• current or potential tenants
• housing cooperative members
• condominium owners or renters
• students
• customers or anyone trying to access or use a good or service

The reason for accommodation must be based on a need related to a protected ground under the Act.

The duty to accommodate applies to individuals and groups under the Act, which includes:

• employers
• landlords
• housing providers
• business owners
• public service providers
• educational institutions
• professional associations
• trade unions
• condominium corporations

Employers, service providers, housing providers, condominium corporations, and landlords have a duty to take steps to accommodate individual needs to the point of undue hardship. Some hardship may be necessary in accommodating a person. Where an employer, service provider, housing provider, condominium corporation, or landlord says that accommodating a person causes an undue hardship, it must provide proof. In many cases, accommodation measures are simple and affordable and do not create undue hardship.

Accommodation may cause some inconvenience, disruption, and expense to an employer, service provider, or landlord, but the law requires accommodation to the point of undue hardship.

Undue hardship occurs if accommodation would create significantly onerous conditions for an employer, service provider, or landlord. For example, this may include intolerable financial costs or serious disruption to business. Other factors that may determine if undue hardship would occur include:

• size and resources of the employer, service provider, or landlord
• interchangeability of work force and facilities (the ability to adjust positions, roles, duties, or job location)
• health and safety concerns

Undue hardship is unique to every situation. Certain accommodation may create undue hardship for one employer, service provider, or landlord but not for another. For example, a business with three employees may not be able to accommodate a request for revised work hours as easily as a business that has 25 employees.

For more information on undue hardship, refer to the Duty to Accommodate human rights guide.

It depends. If the person requesting accommodation refuses reasonable and appropriate accommodation, then the employer, service provider, or landlord has likely met their legal responsibilities.

If the employer, service provider, or landlord fails to accommodate the person to the point of undue hardship, then they may be contravening (going against) the Act. The person requesting accommodation can discuss their situation with human resources and may choose to file a complaint with their employer or ultimately make a human rights complaint with the Commission. You have one year after the discriminatory act or treatment to make a complaint to the Commission.

For more information about the complaint process and remedies, refer to the Making a complaint page.

A BFOR is a standard or rule that is necessary for carrying out the requirements of a particular position within a workplace. For a standard to be a BFOR, an employer must establish that any accommodation or changes to that standard or rule would create an undue hardship.

For example, a seniors’ residence only hires male nursing attendants for male residents who request an attendant of the same gender. A female job applicant applies for a nursing attendant position in the seniors’ residence but is not hired. The employer may have a bona fide occupational requirement, as it is reasonable for residents to have their requests met to preserve their sense of personal dignity and privacy. While the requirement is at first glance discriminatory, it is reasonable and justifiable in the circumstance.

For more on BFOR, refer to the Defences to Human Rights Complaints guide

Human rights laws are only one piece of employment law. There are many laws that govern the relationships between employees, employers, and trade unions and associations.

For example, employment standards laws set out minimum requirements that employers must follow when it comes to employee pay, working hours, terminations, leaves of absence, overtime, and more. Occupational health and safety laws set out rules for ensuring a healthy and safe workplace. Workers’ compensation laws create a no-fault insurance plan to compensate injured workers. Employment insurance laws set out compensation for eligible unemployed workers. Labour laws govern trade unions and employers’ organizations.

Read our Other helpful agencies page to learn more about employment agencies that can help with issues besides human rights.

The Act does not define “employee” or “employer.” The law usually considers an employee to be someone who earns their livelihood from an employment relationship. A person is usually an employer if they somewhat control the worker’s ability to earn a livelihood.

When it comes to human rights issues, courts in Canada have given human rights legislation a broad and liberal interpretation. This means human rights law may consider that an employment relationship exists where other laws do not see the relationship in the same way. Before deciding whether an employment relationship exists, the Commission considers many things, such as:

• evidence of employment and employment payments. For example, employment or collective agreements, payroll deductions, or T4 slips.
• whether the employer controls or supervises the worker’s activities
• the employee’s dependency on the employer
• who owns the worker’s tools or equipment, and who profits from and takes on financial risk for the worker’s activities
• to what extent the worker is part of the employer’s organization

Independent contractors, subcontractors, and taxi drivers have all been employees under human rights law. In some situations, volunteers could also be employees under human rights law.

If you are not sure if you are an employee or employer, contact the Commission.

Employers, service providers, landlords, and others have a duty to accommodate. This means making changes to rules, standards, policies, workplace culture, and physical environments to eliminate or reduce the negative impact that someone faces because of a protected ground. The goal of accommodation is to provide an equal opportunity for an individual or group to participate in any of the protected areas under the Act.

Employers, service providers, or landlords who receive a request for accommodation must take reasonable steps to accommodate the person’s needs to the point of undue hardship.

Read the Duty to accommodate page to learn more.

An employee should continue to receive the same rate of pay they received before accommodation unless:

• their duties changed significantly, or
• the employer would experience undue hardship to maintain their rate of pay.

Yes, but it depends on the situation.

The employer’s duty to accommodate only applies to the parent or caregiver’s legal responsibility to meet the child’s needs, not to personal choices such as attending dance class or soccer games. The employee and employer must work together to find reasonable accommodation. The employer must accommodate the employee to the point of undue hardship. Employees cannot demand only one option for accommodation.

For example, an employee must work until 5 p.m. but their child’s daycare also closes at 5 p.m. The employee and employer must work together to find reasonable accommodation that does not cause the employer undue hardship. Perhaps the employee can adjust their workday to begin and end a half hour earlier. However, if no other employee can close the office, adjusting the employee’s hours may cause the employer undue hardship.

Employers who receive requests for accommodation from more than one employee may consider making a policy about family status accommodations. The policy can outline the employer’s approach and the limitations they may face.

An employee’s pregnancy may prevent them from doing their job. Where possible, an employer should try to modify the workplace so the employee can work within their medical limitations.

For example, a pregnant store clerk may not have to carry heavy boxes from the stock room if someone else on staff can do this work. The clerk could take on more duties that are less physically demanding in exchange for not lifting boxes.

Sometimes a pregnant employee cannot do their job because their duties cannot be changed. In this case, the employer should treat the employee like any other employee who temporarily cannot carry out their duties. This might mean temporarily reassigning the employee or exploring leaves.