Part II Accommodation, Disclosure, Legal Rights and Obligations
While it is clearly established that employers in Canada have a legal duty to accommodate employees with disabilities, the student’s manner, attitude and approach in seeking workplace accommodation(s) can make a great difference to making the process smooth and successful.
Students should not assume that their employer understands what accommodations they need or how an accommodation can be implemented. While an employer may understand that they have a legal obligation to accommodate, they may not understand what the student’s specific needs are or may be under the impression that implementing accommodations will be difficult, time-consuming, or expensive.
In most cases, accommodations cost very little and are easy to implement. Students can make it easy for their employer to implement an accommodation by presenting them with specific information along with the solution. This will likely facilitate a positive interaction resulting in the accommodations the student needs.
Advise students to be experts on their disabilities. They should view it as their role to be a self-advocate and respectfully educate their employer on the issue. They can present their request to their employer once they have already mapped out the solution. It is recommended that they place their request for accommodation in writing in order to keep their request documented throughout the process. They should clearly explain to their employer why they need the accommodation and how it will help them to perform their duties successfully.
Students who require accommodations need to identify who in the workplace can assist them with their requests. Advise the student to begin by discussing with their direct supervisor. If they have not already addressed their need for an accommodation (in the job interview, for example), they may be directed to speak with a manager or a representative from Human Resources.
Encourage students to tell their employer what they need without necessarily their medical diagnosis. Disclosure of a medical diagnosis is a choice and not legally required. For example, a student with chronic back pain could disclose that they have a medical condition that requires accommodating (such as a standing workstation), without disclosing what exactly their medical condition is. An employer may be able to accommodate this request without further information. However, students should keep in mind that they may have to provide medical or other documentation to support their request. This medical documentation just needs to explain the need for accommodation; it does not need to disclose a diagnosis. As stated in the PEI Human Rights Commission publication Workplace Rights: A Guide to the PEI Human Rights Act for Employers and Employees:
An employer does not have an unconditional right to full disclosure of an employee’s medical situation. An employer may only request information as it relates to the specific job of
the employee. An employer may not request medical information which is not employment-related as it is a violation of the employee’s privacy (2016a).
It is an employee’s right to explicit confidentiality concerning the disclosure of private medical information. Therefore, an employer is not permitted to release medical information to anyone other than authorized staff who need it for a specific purpose. Any other communication of medical information is considered a violation of the employee’s right to privacy.
It is an employer’s right to be provided medical information from an employee’s physician if the medical information concerns the accommodation of specific needs of an employee such as specific treatment plans which necessitate changes in the workplace to accommodate (PEI HRC, 2016a).
- Know how much it costs to provide physical accommodations you need and where they can be purchased.
- Know what funding is available for accommodations and show your potential employer how to access it. Contact the Council of People with Disabilities to discuss funding options as they often have programs to help employers cover the cost of accommodating.
- Take care of your own needs, if possible, by providing equipment or technology. This removes a potential for employers who are considering your application.
- Be honest and clear when you request an accommodation. Give examples so the employer can understand what’s involved.
- Explain what your specific needs are. Don’t expect your employer or co-workers to anticipate them.
- Offer solutions and suggestions. Emphasize what the accommodation will enable you to do.
What if an accommodation request is denied?
Under the duty to accommodate, employers must accommodate employees with disabilities to a reasonable degree unless this places the employer in a position of . How undue hardship is defined depends on several different factors and varies from one situation to the next.
An accommodation request can only be denied if changing a , practice, or rule would cause undue hardship (PEI HRC, 2016a). If the student’s employer denies an accommodation on the grounds of undue hardship, the student may file a human rights complaint with the PEI Human Rights Commission (HRC) and the HRC will determine whether implementing the accommodation would place undue hardship on the employer. The employer will be required to demonstrate undue hardship to the HRC; it is their responsibility to prove the existence of undue hardship as a result of providing accommodation (PEI HRC, 2016a).
Students should keep their expectations reasonable when requesting an accommodation. They may not get exactly the accommodation they requested but may be granted a reasonable accommodation that does not place undue hardship on their employer. Employers have an obligation to provide reasonable accommodation, and such accommodation is circumstantial and addressed on a case-to-case basis (PEI HRC 2016a, 2016b; CHRC, 2013).
- An excellent resource for accommodations in the workplace can be found at askjan.org. This website includes the Searchable Online Accommodation Resource (SOAR), which allows users to search for accommodation options for various types of disabilities. SOAR can be accessed from the following link: https://askjan.org/soar.cfm ↵
Disclosure refers to the act of making information about a disability known. In the employment setting, disclosure would be the act of an employee informing their employer about their disability.
A barrier is an element of the environment, including physical elements and emotional attitudes, that prevents a person with a disability from full participation in an activity.
Undue hardship means that accommodating the special needs of protected individuals (employees protected under the PEI Human Rights Act) imposes an unreasonable burden on employers. “What constitutes undue hardship will vary in each case, as will the factors taken into consideration.” For example, it is considered undue hardship if the accommodation creates unsafe working conditions for one or more employees.
A bona fide occupational requirement, or BFOR, is a job requirement or qualification that is essential to completing the job safely and efficiently. An employer would not be required to provide an accommodation if it can show that the specific job duty or requirement is a bona fide occupational requirement. For example, operation of a vehicle to transport equipment from one work site to another would qualify as a BFOR. Accommodating a worker who is blind would not be a reasonable expectation in this scenario