Calgary Employment Lawyers Advising Employers on the Duty to Accommodate

Alberta employers have a legal duty to accommodate employees and job candidates when a workplace rule, requirement or condition creates a disadvantage connected to a protected ground under the Alberta Human Rights Act, unless accommodation would cause undue hardship.

What Is the Duty to Accommodate?

The duty to accommodate requires employers to make reasonable changes to workplace rules, practices, duties or working conditions where necessary to address needs connected to a protected ground under the Alberta Human Rights Act.

The goal is to remove or reduce barriers that prevent an employee from participating fairly in the workplace.

Accommodation can take many forms. Depending on the circumstances, it may include:

• Modifying job duties;
• Changing hours or schedules;
• Providing disability-related leave;
• Allowing time for religious observances;
• Modifying workplace policies;
• Providing equipment or physical modifications;
• Implementing a graduated return to work; or
• Considering other reasonable workplace arrangements.

Accommodation is an individualized process. What works for one employee may not be appropriate for another employee, even where both employees have similar circumstances.

Who Is Eligible for Workplace Accommodation?

The duty to accommodate applies where an employee or job candidate has a workplace need connected to a protected ground under the Alberta Human Rights Act.

Protected grounds in employment include:

• Race;
• Religious beliefs;
• Colour;
• Gender;
• Gender identity;
• Gender expression;
• Physical disability;
• Mental disability;
• Age;
• Ancestry;
• Place of origin;
• Marital status;
• Source of income;
• Family status; and
• Sexual orientation.

The accommodation must relate to a genuine need connected to the protected ground. A personal preference that is unrelated to a protected ground does not generally trigger the legal duty to accommodate.

Does the Duty Apply to Job Candidates?

Yes. An employer’s duty to accommodate can begin when a job is first advertised and continue until the employee leaves the workplace.

For example, a candidate with a disability may require a reasonable modification to an interview or testing process.

When Is the Duty to Accommodate Triggered?

The duty to accommodate is generally triggered when an employer knows that an employee has a workplace need connected to a protected ground.

In many cases, the employee will expressly request accommodation. For example, an employee may tell their employer that:

• A disability prevents them from performing certain duties;
• They require modified hours for medical reasons;
• They need time away from work for treatment;
• A religious practice conflicts with a workplace schedule; or
• A family-status obligation creates a workplace accommodation need.

Once the employer is aware of a possible accommodation need, it should take reasonable steps to understand the issue and consider available solutions.

Can the Duty Arise Without a Formal Accommodation Request?

Yes. An employee does not always have to use the word “accommodation” before an employer’s obligations arise.

The Alberta Human Rights Commission confirms that employers may have a duty to inquire where they are aware, or reasonably should be aware, that a disability is affecting an employee’s work.

See our page on the Duty to Inquire [insert link] for more information.

What Rights Do Employees Have During the Accommodation Process?

Employees have the right to have legitimate accommodation needs considered fairly and individually.  Employees are entitled to reasonable accommodation to the point of undue hardship.

However, employees are not necessarily entitled to:

• Their preferred accommodation;
• A perfect solution;
• A workplace arrangement that eliminates every inconvenience; or
• An accommodation that would create undue hardship for the employer.

The process should focus on whether there is a reasonable arrangement that addresses the employee’s protected need.

What Are an Employer’s Obligations?

Employers must take an active and reasonable approach to accommodation.

Once a potential accommodation need is identified, the employer should:

• Make efforts to understand the nature of the workplace limitation or need;
• Obtain appropriate supporting information where necessary;
• Consider possible accommodation options and include the employee in discussions regarding possible accommodation options;
• Be flexible in looking for workable solutions;
• Assess the employee’s circumstances individually;
• Consider reasonable alternatives;
• Implement appropriate accommodation; and
• Reassess the arrangement where circumstances change.

The Alberta Human Rights Commission emphasizes that employers should engage with the employee and be flexible and creative when searching for appropriate accommodation.

Employers Should Focus on the Actual Barrier

The employer should first identify what prevents the employee from fully participating in the workplace.

For example, the issue may involve:

• A physical restriction;
• A scheduling conflict connected to religion;
• A disability-related attendance issue;
• A family-status need; or
• A workplace policy. 

Once the barrier is understood, the employer can consider how it might reasonably be removed or reduced.

Employers Should Consider More Than One Option

The first accommodation proposed is not always the only option. An employer may need to consider:

• Whether duties can be modified;
• Whether schedules can change;
• Whether another employee can perform a particular task;
• Whether equipment can address the limitation;
• Whether a temporary arrangement is appropriate;
• Whether a gradual return to regular duties is possible; or
• Whether another reasonable solution is available.

Employers should avoid deciding too quickly that accommodation is impossible.

Does an Employer Have to Provide the Employee’s Preferred Accommodation?

Not necessarily. Employees are entitled to reasonable accommodation, but not automatically to the specific arrangement they request.

For example, an employee may request permanent remote work, while another arrangement may adequately address the employee’s protected need. The employer should genuinely consider the employee’s proposal. However, if another reasonable accommodation properly addresses the need, the employer may generally choose that option.

The Alberta Human Rights Commission notes that an employee cannot simply reject a reasonable solution because they would prefer a different accommodation.

What Are the Employee’s Obligations?

Accommodation is a shared process. Employees seeking accommodation also have responsibilities.

An employee should generally:

• Tell the employer that accommodation is required;
• Explain the need sufficiently for the employer to understand it;
• Provide reasonable supporting information or documentation where required;
• Respond to reasonable requests for clarification;
• Participate in discussions about possible solutions;
• Cooperate with reasonable accommodation efforts;
• Consider appropriate alternatives;
• Keep the employer informed when circumstances materially change; and
• Participate in implementing the accommodation.

The employee is not required to prove every detail of their private circumstances unnecessarily. However, the employee must generally provide enough information for the employer to understand the need and determine what accommodation may be appropriate.

What If an Employee Does Not Cooperate?

An employer cannot effectively accommodate a need it does not understand. If an employee refuses to provide reasonably necessary information or refuses to participate in the accommodation process, the employer’s ability to accommodate may be limited.

Before concluding that the employee has failed to cooperate, employers should consider:

• Whether the request for information was reasonable;
• Whether the employer explained what was required;
• Whether the employee understood the request;
• Whether enough information has already been provided;
• Whether other accommodation options remain available; and
• Whether the employee has been given a reasonable opportunity to participate.

Where an employee refuses a reasonable and appropriate accommodation without sufficient reason, the employer may have satisfied its accommodation obligations.

What Information Can an Employer Request?

An employer may request information reasonably necessary to understand the accommodation need. The information required depends on the protected ground and circumstances.

See our page on Requesting Medical Information from Employees [insert link] for more information.

How Should Employers Document the Accommodation Process?

Accommodation decisions should be documented carefully.

Employers should maintain records of:

• The employee’s request;
• The workplace need identified;
• Information provided by the employee;
• Any additional information requested;
• Accommodation options considered, including other positions considered, if any;
• Discussions with the employee, including follow-up discussions after an accommodation is implemented;
• Reasons particular options were accepted or rejected;
• The accommodation implemented;
• Changes in circumstances; and
• Any assessment of undue hardship.

Documentation should demonstrate that the employer genuinely considered the request rather than simply recording the final answer.

What Is Undue Hardship?

The duty to accommodate does not continue without limit. Employers must provide accommodation to the point of undue hardship.

Some hardship is expected. An accommodation is not undue hardship simply because it:

• Is inconvenient;
• Requires some additional work;
• Causes minor scheduling problems;
• Costs the employer money;
• Requires changes to ordinary procedures; or
• Is not the employer’s preferred solution.

The hardship must be substantial. The Alberta Human Rights Commission describes undue hardship as significantly onerous conditions, which may include intolerable financial cost or serious disruption to the business.

How Is Undue Hardship Assessed?

There is no fixed formula. Whether accommodation causes undue hardship depends on the particular employer, employee, and workplace. The employer bears the burden of establishing undue hardship.

Relevant considerations can include:

• Financial cost;
• Size and resources of the employer;
• Ability to modify duties or positions;
• Ability to adjust schedules or work locations;
• Workforce flexibility;
• Serious operational disruption;
• Health and safety risks; and
• Availability of alternative accommodation.

An accommodation that would create undue hardship for a very small employer may be manageable for a larger organization with more employees, positions and resources.

The assessment must be based on evidence rather than assumptions.

Health and Safety and the Duty to Accommodate

Health and safety can be a legitimate consideration when assessing accommodation.

However, an employer should not rely on generalized concerns such as: “This could be unsafe.” The employer should assess the actual risk.

The employer’s obligation is to assess whether a reasonable accommodation can address the risk before concluding that accommodation or continued accommodation is not possible.

How Long Does the Duty to Accommodate Last?

There is no fixed period. The duration depends on the circumstances.

The duty may involve:

• A short-term adjustment;
• Temporary modified duties;
• An extended medical leave;
• A gradual return to work;
• A recurring accommodation; or
• A permanent workplace modification.

Employers should reassess accommodation where:

• An employee’s medical information or restrictions change;
• The employee’s position changes;
• An accommodation stops working; or
• The employer believes continued accommodation may create undue hardship.

A lengthy accommodation does not automatically become undue hardship simply because time has passed.

Can an Employer Terminate an Employee Who Requires Accommodation?

Potentially, but employers should proceed very carefully. An employer cannot lawfully terminate an employee because of a protected characteristic without considering its human rights obligations.

Where an employee cannot perform their regular duties because of disability or another protected ground, the employer should consider whether reasonable accommodation remains available.

Before contemplating termination, employers should review:

• The nature of the employee’s restrictions;
• The expected duration of the restrictions;
• Accommodation already provided;
• Other available accommodation;
• Whether duties can reasonably be modified;
• Whether other appropriate work may be available;
• The operational effect of continued accommodation; and
• Whether the point of undue hardship has actually been reached.

Employers should obtain legal advice before terminating an employee who requires accommodation.

Common Accommodation Mistakes Employers Should Avoid

Even well-intentioned employers can create human rights exposure by approaching accommodation too narrowly. Common mistakes include:

• Refusing a request before obtaining enough information;
• Assuming accommodation must look the same for every employee;
• Requiring unnecessary personal or medical information;
• Ignoring signs that a disability may be affecting performance or attendance;
• Treating disability-related conduct automatically as misconduct;
• Failing to involve the employee in the accommodation process;
• Failing to consider alternative arrangements;
• Rejecting accommodation because it is inconvenient;
• Assuming any financial cost amounts to undue hardship;
• Failing to document options considered;
• Failing to reassess accommodation when circumstances change; and
• Terminating employment before determining whether the accommodation process is complete.

The process is often as important as the final accommodation decision.

What to Do Next When an Employee Needs Accommodation

Alberta employers should consider the following steps:

• Identify the protected need. Determine whether the request is connected to a ground protected under human rights legislation.
• Understand the workplace barrier. Identify what is preventing the employee from participating fully in the workplace.
• Get the information you reasonably need. Avoid requesting information that is unnecessary.
• Talk to the employee. Accommodation should be a cooperative process.
• Identify possible solutions. Consider more than one option where appropriate.
• Focus on reasonable accommodation. The employee’s preferred option is not necessarily required.
• Consider the employee’s individual circumstances. Avoid one-size-fits-all solutions.
• Document the process. Record information received, alternatives considered and reasons for decisions.
• Protect confidentiality. Share personal information only where necessary.
• Monitor the arrangement. Accommodation may need to change over time.
• Do not assume inconvenience is undue hardship. The threshold is substantially higher.
• Get legal advice before denying accommodation or terminating employment.

Getz Collins and Associates: Advising Alberta Employers on Workplace Accommodation

Workplace accommodation can involve difficult decisions about job duties, attendance, medical restrictions, workplace policies and operational requirements.

The employment lawyers at Getz Collins and Associates advise Alberta employers on practical accommodation strategies that comply with their human rights obligations while recognizing legitimate business needs.

We can assist employers with:

• Responding to accommodation requests;
• Determining when the duty to accommodate is triggered;
• Developing accommodation plans;
• Assessing employee participation in the accommodation process;
• Disability-related leaves and return-to-work planning;
• Religious and family-status accommodation;
• Obtaining and reviewing medical information;
• The duty to inquire;
• Assessing potential undue hardship;
• Performance and attendance concerns involving protected grounds;
• Termination decisions involving accommodation issues; and
• Human rights complaints.

Obtaining advice early can help employers identify workable accommodation, document the process appropriately and reduce the risk of a human rights complaint.

From our Calgary office, Getz Collins and Associates advises employers throughout Alberta, including Calgary, Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, Hussar and surrounding communities.

Call 587-391-5600 or contact us online to schedule a consultation with an employment lawyer.