A checklist for employers

  • An employee has made a request for accommodation
    • TIP: It is not a fixed rule that an employee must advise the employer of a need for accommodation. If an employer has reason to suspect, or ought reasonably to have suspected, based upon a significant change in an employee's behavior or performance, that an employee might be contending with circumstances connected to a protected characteristic under human rights legislation, the employer should pursue relevant inquiries to determine what may be underlying the conduct that is resulting in the employee's inability to meet the normal expectations of the workplace. Where a Code-protected need is confirmed, the employer should proceed to assess the relevant accommodation issues as set out below. If the employee denies there is anything wrong and refuses assistance, then the employer will likely be found to have discharged its duty to inquire as to whether there is a need for accommodation.
  • Determine if an employee’s request for accommodation or your suspicion about a possible need for accommodation falls under The Manitoba Human Rights Code (i.e. protected characteristics) or the relevant collective/contractual agreement.  If it doesn’t fall under The Code or an agreement, a duty to accommodate under human rights law does not arise.
  • Review any information that the person seeking accommodation provides to support the request for accommodation  ex. medical documents.
  • Listen to and consider the needs of the person seeking accommodation and their suggestions for accommodation.
  • If an employee is requesting accommodation due to a disability, obtain relevant medical information from the employee's caregivers (this may be over and above what the employee might have already given you).
    • TIP: Employers seeking medical information about an employee with a disability are only entitled to that information which is necessary to assess and respond to an employee’s accommodation request and to determine what accommodation options are available for the employee.  As a result, the employer may not be entitled to a specific diagnosis of the employee’s illness or disability or to information about the employee’s specific medical treatment.  What an employer is entitled to know is the following:
      • Employee's current medical status
      • Any limitations, restrictions or precautions resulting from the employee's condition
      • How those limitations or restrictions might impact the employee's ability to do his/her current job
      • The prognosis for the employee's full or partial recovery
      • The employee's fitness to return to work
      • The likely duration of any restrictions or limitations following the employee's return to work
      • The scope, duration or nature of the accommodation needed
    • The best approach to obtain the kind of information you will need is to write a letter to the caregiver(s), with the employee’s knowledge and consent, setting out your specific questions – it is not necessarily the most effective approach to ask the employee to obtain the information because there may be a time delay involved and it also leaves it to the employee and caregiver to determine what you “need to know”
    • If you have been given conflicting medical information, you might need to obtain an independent medical examination
    • Remember that to obtain information directly from an employee’s doctor, you will need the employee to provide written authorization for the doctor to release the relevant information to you
    • Give the caregiver all relevant documents to help them help you: job descriptions, description of physical demands of the job, for example
  • As much as possible, set out in writing to the employee what information you might need from them to assist in the accommodation process – you can never go wrong by creating a paper trail.
  • Once you have information to enable you to assess the employee's accommodation request, proceed to reply to the request for accommodation within a reasonable amount of time.
      • TIP: Employers should ensure they have up-to-date job descriptions which accurately detail the duties of all positions in the workplace.  Outdated job descriptions can impact an employer’s ability to find accommodation and to later argue it provided reasonable accommodation.
    • Identify essential duties and non-essential duties of the current job
    • Of the non-essential duties identified, can any of these duties be removed or reassigned?
    • Of the essential duties identified, what can the employee do/not do?
    • Identify what can be done to assist the employee perform the current job:
      • can modifications be made to the way the job is done in its existing form?
      • can the employee be provided with particular equipment or support to enable her to perform the job?
      • can modifications be made to work schedule or workload?
      • can the job be rebundled?
    • If it is determined the employee cannot perform the essential duties of the current job even with accommodation, document this and set out the reasons why.
    • If the employee cannot perform his/her existing job in a modified or rebundled form, identify all other job possibilities in the organization
    • Identify what, of the essential duties of those jobs, the employee can do and what they cannot due to restrictions
    • Determine if the employee can perform any of these jobs in their existing form
    • If not, identify what can be done to enable the employee to perform any of the possible jobs in a modified or rebundled form
    • If it is determined the employee cannot perform the essential duties of other jobs even with accommodation, document this and set out reasons why
      • Helpful suggestions when reviewing current/other jobs:
        • Be flexible and creative when considering and developing accommodation options
          1. purchasing or modifying tools, equipment or aids, as necessary
          2. altering the premises to make them accessible
          3. altering aspects of the job, such as job duties
          4. offering flexible work schedules
          5. offering rehabilitative programs
          6. allowing time off for recuperation
          7. transferring employee to a different job
          8. hiring an assistant
          9. using temporary employees
          10. adjusting policies (ex. relaxing uniform requirements)
        • WORD OF CAUTION:  when accommodation of an employee is being considered, there is no requirement that an employee be able to meet all demands of a particular job – only the duties that are truly essential to the job.  The employee must have the ability to perform the essential duties of their current or other identified available job in the workplace after the employer adapts the job to accommodate their special needs.  If, after accommodation is put into place, the employee cannot satisfy job requirements, the duty to accommodate will be relieved.
    • Get input from the employee and, if a unionized workplace, the union as to what the employee can do from the options identified by the employer
    • Get input from medical or other relevant experts as to what the employee can do from options identified
    • An employee is not entitled to the accommodation they precisely want or the most ideal solution. They are entitled to reasonable and appropriate accommodation.
    • If full accommodation is not possible without undue hardship, try to suggest options that may partially meet the needs of the person seeking accommodation
    • If accommodation is not possible at all due to undue hardship, make certain you have the necessary information to support such a claim. Make sure you are able to provide details to justify a refusal to accommodate. If cost is a factor, for example, you will need to show why the particular cost of implementing an accommodation is an undue hardship.
    • Document, document, document & Communicate, communicate, communicate!: outline in writing for the employee what will be done and any terms/conditions attached
    • Make sure supervisors and co-workers are aware of what is being done and why and, if their support is needed, ensure it has been requested and obtained
    • Follow up to ensure that the accommodation implemented meets the needs of the person who requested the accommodation
    • Review and modify the accommodation if circumstances or needs change (including if accommodation is no longer required)