What is the Duty to Accommodate?
If you have a medical condition that restricts your ability to perform your usual job duties, you have the right to seek a workplace accommodation. The “duty to accommodate” means that employers must look for ways to modify tasks or jobs to ensure that you can continue to work, and enjoy your rights and benefits under the collective agreement.
Fair access to employment is a fundamental legal right. Federal and provincial human rights laws prohibit workplace discrimination for reasons of physical or mental disability, gender, family status, or religious belief. The Supreme Court of Canada has ruled that all employers must accommodate injured or disabled workers by ensuring that work and the workplace are designed and modified to ensure equal access to all workers.
What are my Employer’s Responsibilities?
Employers have a duty to accommodate to the point of undue hardship. “Undue hardship” is a strict legal test. An employer must demonstrate significant disruption, to the point of endangering the viability of their business, to refuse to accommodate a worker.
Arbitration awards and court decisions have defined the responsibilities of employers in looking for suitable accommodations. These include:
- Designing workplaces, procedures, and work rules to ensure that persons with medical restrictions or limitations can access work.
- Modifying existing jobs to enable workers to return to work.
- Looking for alternative jobs or combining tasks, if required to accommodate.
Employers are not required to create jobs or work tasks that do not currently exist. They are not required to accommodate workers if to do so would create significant hardships on their ability to run the enterprise, or significantly impact the rest of the workforce. The accommodation should minimize the impact on both you and your co-workers.
If at all possible, you should be accommodated in your pre-injury job. If this is not possible, the job should be modified, or different tasks assigned.
Employers must obtain only the medical information that is needed to accommodate the worker, and they must keep that information confidential.
What are the worker’s responsibilities?
Workers must participate in the accommodation process. They must supply a clear description of any limited capabilities they have that may affect their ability to perform a job or job task. Medical verification of any restrictions or limitations will be required.
The Role of Your Union
UFCW 1518 is committed to ensuring that your rights to a fair accommodation and all members’ rights under the collective agreement are respected.
While the employer is responsible for ensuring that a worker is accommodated, UFCW 1518 must also be involved to ensure that the best arrangements are made. The union’s objective is to return all workers who have restricted capacities to their jobs and to ensure equal and fair access to all. We work to ensure that employers respect the rights of injured workers and that they minimize the impact of accommodations on their co-workers.
All union members have a part to play in supporting our members with accommodations and ensuring that employers respect collective agreement rights.
Provincial Accommodation Committees
UFCW 1518 has established a Joint Accommodation Committee that meets regularly with Sobeys and the Overwaitea Food Group. Your union representatives on this committee review all of the information required in confidence and work with the employer to ensure that the best accommodations are implemented. The Joint Accommodation Committee has developed specific procedures and information forms that are used in the accommodation process.
The union ensures that the rights of all our members are respected, and coordinates the involvement of the member, co-workers, and your Union Representative. If an agreement or an accommodation cannot be reached to the satisfaction of the worker, the employer, or the union, the issue will be heard before an accommodation arbitrator, who will make a decision based on current law.
If you are seeking an accommodation, or need more information, please contact your Union Representative for assistance, guidance, and support. If you don’t know who your Union Representative is, please contact the main desk at [email protected] or phone 1.800.661.3708.
The Duty to Accommodate: Some Frequently Asked Questions
A: Inform your manager and Union Representative right away. Keep in mind that many physical tasks that are difficult to perform without risk of injury must be controlled under BC safety regulations and apply to all workers without accommodation requests required. In addition, there may be avenues through your collective agreement that will enable you to adjust your work schedule should a time of day request be considered.
If you do pursue a formal accommodation, you will receive a work restriction form from the company for your doctor to complete. The form and any information you, your Union Representative, and your onsite manager can supply regarding possible accommodation will be reviewed through the provincial Accommodation Committee. Your representatives on that committee will contact you.
While this process is occurring, immediately discuss temporary assignment to alternate duties with your employer and union representative to ensure you do not lose hours or wages if you are capable of alternative work.
A: No! The first option is always to seek an accommodation with your pre-injury employer.
WCB does not enforce human rights law, and if an employer refuses to accommodate an injured worker, WCB may not challenge this.
You should immediately contact your Union Representative to ensure that the Accommodation Committee can begin to assist you.
A: Yes. If your job can be modified or tasks bundled together that you can do, we will try to arrange this. Also, consider referring this to your Health and Safety committee.
A: Often it is not. The Accommodation Committee needs a more detailed description of your limitations in order to determine the best possible accommodations available. We have developed forms for this purpose that are available from your employer.
A maximum of $50 will be paid by the employer (as specified in your collective agreement) for completion of this form. This is confidential information and a copy should be sent to the Accommodation Committee.
A: The committee will look for all the available hours in duties that are suitable for you and try to ensure that you are working up to whatever hours you would normally be scheduled. This process may take time, however, and there may be times when this goal cannot be immediately achieved.
A: It is our goal to first try to exhaust all available opportunities in your own location. Where this is not possible then we will look for opportunities in other locations.
A: Yes. Our goal is to see persons accommodated in their own jobs and location.
A: No. You will be paid the same rate as others working the same job.
A: When a suitable permanent accommodation cannot be immediately found we may temporarily place a person in a temporary vacancy. We then continue to look for an accommodation arrangement that is not subject to temporary vacancies.
A: No. You are responsible for reporting any significant changes in your work capacity. Accommodation arrangements will be reviewed periodically and whenever a change in your condition warrants it.
If you recover from a chronic condition, you will no longer require a special arrangement. If you are finding it difficult to continue in an accommodation, notify the committee and we will address any new issues that arise.
A: No. However, you should contact us as soon as you are aware of the need for an accommodation.
A: Yes. All workers have a right to WorkSafe benefits if they become injured due to their employment.
A: We will use temporary vacancies, if needed, in order to ensure a permanently injured member has work, while we seek something more permanent. Temporary vacancies may be positions open due to maternity leave, vacation or other leaves of absence. We will consider temporary assignments of co-workers to different tasks in order to temporarily accommodate a member.
Assignments would not result in any employee losing hours or benefits.
Any members potentially affected will be consulted and if alternative arrangements can be made, they will be.
A: Job modifications or alternative work arrangements must be implemented unless they significantly threaten the viability of an employer’s business. This will depend on the size of the employer and the options available to them.
The courts have made undue hardship a high standard and all reasonable attempts to accommodate workers with disabilities must be made. There is no dollar limit set or established.
A: Any arrangement that results in another member losing hours or benefits (other than through normal operation of seniority) would be an undue hardship. Temporary assignment from one position to another would not. However, we will seek to avoid any disruption if at all possible. At the same time we urge and expect all of our members and employers to assist in finding the best accommodation for injured employees.
A: Whenever members are dissatisfied with an accommodation arrangement, you or your co-workers should contact the union’s Duty To Accommodate Committee for advice and assistance.
Please remember that the accommodation process is an evolving one. Many questions arise in the course of each individual case. If you wish to discuss the “duty to accommodate” either for yourself or on behalf of your co-workers, please contact your union representative.