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, gender identity and gender expression.
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 in most cases is straightforward and simple, it can sometimes 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 respect the dignity of accommodation seekers.Both accommodation providers and people seeking accommodation benefit from clearly understanding their roles and responsibilities and the accommodation process. Clear, fair and comprehensive accommodation policies and procedures help organizations to meet their duty to deal fairly, thoroughly and effectively with accommodation requests.
The standards and principles for accommodation are set out in the relevant OHRC policies and guidelines, such as:
Consult these documents for a fuller understanding of the standards and legal requirements of accommodation, and of accommodation issues related to particular Code grounds.
Note that some accommodations are very simple and straightforward, and do not require a formal or complex process.
The way an accommodation is provided and how it is implemented are subject to human rights standards. The principles of dignity, individualization, 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 have a meaningful dialogue about accommodation, and to work together respectfully towards accommodation solutions. Everyone involved should co-operatively engage in the process, share information, and work towards potential accommodation solutions.
Note: The sample wording provided in the sections below relates to employment, but can be modified to address housing or services. The sample wording is provided only as an example. There is no single best policy or procedure. You will always need to review policies and procedures to make sure they comply with current human rights law and policy and are appropriate for your organization.
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. Undue hardship takes into consideration cost, outside sources of funding and health and safety.
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) gender identity, gender expression, 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. Applying the policy and procedure
The policy and procedure should set out the scope of its application.
Accommodation should be provided to existing employees, tenants or clients. It should also be provided to people applying for housing, employment or services. For example, job-seekers may need accommodation during the interview or screening process. Develop procedures to inform applicants of their right to accommodation for needs related to Code grounds, and to assure them that accommodation requests will not negatively affect the evaluation process. Similarly, in a service setting, prominently post accommodation policies and procedures 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 people who work to gain experience or for benefits, such as volunteers, co-op students, interns and apprentices. It also applies to people 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 before the interview.
4. Requests for accommodation
It is very important to note that some people 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, take all accommodation requests seriously, regardless of the format of the request.
Make requests for accommodation to your manager.
Accommodation requests should, whenever possible, be made in writing. The accommodation request should indicate:
- The Code ground the accommodation is being requested on
- The reason accommodation is required, including enough information to confirm the existence of a need for accommodation
- 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. Providing information
The parties to the accommodation process must share information about accommodation needs and potential solutions. In some cases, you may need to get expert opinions or information to confirm the need for accommodation, or to determine appropriate accommodations.
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 collecting documentation protects the privacy of the accommodation seeker – and 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. If this is the case, these departments should communicate to an employee’s supervisor the duties the person can and cannot perform and not the details of the employee’s medical condition or personal situation.
The manager, Human Resources Manager or Medical Department may require more 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 more information on the employee’s limitations or restrictions is needed 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 needed 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
- 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 persons who need the information.
6. Privacy and confidentiality
Requests for accommodation may involve disclosing private or highly sensitive information. Ask people requesting accommodation only for information required to establish the foundation of the accommodation request, and to respond appropriately to the request. For people to feel comfortable making accommodation requests, they must feel confident that the information they provide will be treated confidentially, and shared only as needed for the accommodation process. It is generally advisable for employers to keep information about 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 cooperatively, share information, and work towards 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 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. It may include:
- A statement of the accommodation seeker’s relevant limitations and needs, including any needed assessments and information from experts or specialists, bearing in mind the need to maintain the confidentiality of medical reports
- Arrangements for needed 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 providing the accommodation
- Criteria for determining the success of the accommodation plan, together with a process for reviewing and re-assesing the accommodation plan as needed
- An accountability mechanism.
8. Appropriate accommodations
Accommodation may take many forms. What works for one person 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
- Changes to organizational policies and practices
- Technical aids
- Human support
- Providing materials in alternative formats
- Building modifications
- Counselling and referral services
- Temporary or permanent alternative work
- Changes to 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 change over time. As well, accommodations may require adjustments during and after implementation, to improve effectiveness or efficiency. So it is important to regularly monitor and review the accommodation plan.
The manager and the person receiving accommodation will monitor the success of the Accommodation Plan, and 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 OHRC’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 before concluding that a particular accommodation will result in undue hardship. Determining that 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.
A decision 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 decision on 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.
Only the Chief Administrative Officer of XYZ Organization can determine that an accommodation will create undue hardship.
Where an accommodation is assessed to 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 will 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 decision 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 determining 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 10 at para. 66.
 Krieger v. Toronto Police Services Board, 2010 HRTO 1361 (CanLII)
 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.”