Policy and Guidelines on Disability and the Duty to Accommodate, 2000
Duties and Responsibilities in the Accommodation Process:
"The accommodation process is a shared responsibility" (2000, p. 23). Everyone should cooperatively engage in the process.
The person with a disability is required to:
• advise the provider of the disability
• make his/her needs known to the best of his/her ability
• discuss his/her disability with persons on a need to know basis
• respond to questions, provide relevant information as needed, work with the provider to manage the accommodation process
• cooperate with any experts and the providers of the accommodation when required
• meet agreed-upon performance standards once accommodation is provided
Persons with disabilities should disclose information to the provider of the accommodation, only as it pertains to the need for accommodation. Maintaining confidentiality for individuals with mental illness is especially important because of strong and persistent social stigmas and stereotyping. Releases of information should be provided only to those who need to be aware, and all documentation of the disability should be retained in a consistent manner with all other personal information.
The provider is required to:
• accept the request for accommodation in good faith, unless legitimate reasons indicate otherwise
• obtain any expert opinion or advice needed
• take an active role as partners in the accommodation process
• take an active role in ensuring that alternative approaches and solutions are investigated and considered
• keep record of the accommodation request and action(s) taken
• maintain confidentiality
• agree to accommodation requests in a timely manner
• assume the costs of any required medical information or documentation
• support accommodation measures irrespective of collective agreements
Undue hardship:
The Code specifies three considerations in assessing whether an accommodation would cause undue hardship; cost, outside sources of funding, if any, and health and safety requirements, if any. No other considerations are permitted or can be properly considered under Ontario law. Business inconvenience, morale, customer preference and collective agreements or contracts are, therefore, excluded from consideration.
The provider(s) of accommodation has the onus of proof, to defend undue hardship. The evidence required to prove undue hardship must be objective, real and direct. Objective evidence includes, but is not limited to:
• financial statements and budgets
• scientific data (empirical studies)
• expert opinion
Further, in the case of cost as the basis of undue hardship, quantifiable facts, figures and data are required.
Cost:
The cost standard is a high one. Costs will amount to undue hardship if they are:
• quantifiable;
• shown to be related to the accommodation; and
• so substantial that they would alter the essential nature of the organization or they would substantially affect its viability
The Policy and Guidelines further indicate the types of financial costs that can be considered as costs of the accommodation to be quantified (e.g. Capital expenditures, operating costs and additional staff time, restructuring, etc.). These costs must be actual, not hypothetical or speculative.
In regards to determining whether costs would alter the "essential nature or substantially affect the viability of the organization" (2000, p. 31), the Commission will consider an organization's ability to:
• recover the costs in the normal course of business
• access available grants, subsidies or loans from government and non-government sources which could offset the costs
• distribute the costs throughout the whole operation
• depreciate costs according to accepted accounting principles
• deduct any savings that may be available as a result of the accommodations (tax deductions, productivity gains, resale value increases, etc.)
Outside Sources of Funding:
Funding made available by means that are external to the organization, may assist with reducing or eliminating accommodation costs. These sources must be explored before declaring undue hardship. Potential sources of funding include:
• government programs that are available to the individual (linked to the individual's disability)
• funds and/or arrangements that share, compensate or reimburse the costs of accommodation
• funding programs that improve accessibility (organizational responsibilities)
Health or Safety Requirement:
Undue hardship will be shown where the environment has a bona fide health or safety requirement and the degree of safety risk remains after the accommodation has been made; and, the risk outweighs the benefits of equality for persons with disabilities. This applies to regulated health and safety practices as well as to company-established practices. The provider of accommodation "is obliged to explain the potential risk to the individual" (2000, p. 35).
The accommodation provider is required to show an objective assessment of the risk as well as demonstrate how an alternative measure provides equal opportunity to the person with a disability. The means of accommodating must have been explored and deemed unachievable before undue hardship can be claimed.
Factors to be considered when modifying or waiving a health and safety requirement include:
• the significance, probability and seriousness of the risk;
• other types of risks that the provider is assuming within the organization; and
• the types of risks tolerated within society as a whole
The risk that remains after all precautions, including accommodations that have been made to reduce the risk, will determine undue hardship.
Minimizing Undue Hardship:
The Commission requires 11 factors and strategies be considered in order to avoid undue hardship and meet the duty to accommodate under the Code.
• cost recovery
• distributing costs
• reducing financial burden
• tax deductions
• improvements to productivity, efficiency or effectiveness
• second injury and enhancement fund (workplace safety and insurance board)
• creative design solutions
• a less expensive alternative
• phasing-in accommodation
• establishing a reserve fund
• assessing the impact of remaining costs
• expert assessment
Accommodation Planning and Implementation:
"The best defense against human rights complaints is to be fully informed and aware of the responsibilities and protections included in the Code. Organizations can achieve this by developing disability accommodation policy and procedures as well as by conducting an accessibility review" (2000, p. 41). Organizational policies and accessibility reviews are proactive ways that an organization can address the needs of persons with disabilities and the fundamental rights to; freedom from discrimination, equal treatment, equal opportunity to access, and individualized accommodation.
Organizational Policy communicates the means of dealing effectively, quickly and fairly with situations involving claims of discrimination. Organizations, as providers, can be held liable if they do not act to end discrimination or harassment. Anti-discrimination policies and procedures that resolve complaints of discrimination offer many benefits, save time and money, and make good business sense.
An Accessibility Review identifies and implements the necessary changes to make facilities, procedures and services accessible to those with disabilities. It shows to what extent, an organization is accessible and what needs to be done.