Employers in Alberta have a legal obligation to ensure their workplaces are free from discrimination. One of the most important aspects of this obligation is the duty to accommodate employees with disabilities.
The Legal Duty to Accommodate
Under the Alberta Human Rights Act, employers must not discriminate against employees on the basis of a physical or mental disability, amongst other protected grounds, such as race, religious beliefs, colour, gender, gender identity, gender expression, age, ancestry, place of origin, marital status, source of income, family status, and sexual orientation.
When an employee seeks an accommodation in the workplace, the employer has a duty to accommodate up to the point of undue hardship. If the employer fails to properly accommodate, the employee may bring a claim for discrimination.
Discrimination can arise when a workplace rule, policy, or practice has a negative impact on an employee because of a protected characteristic. Employees have the right to equality and full participation in the workplace, and employers must take reasonable steps to remove barriers that prevent employees from performing their work.
Accommodation Requirements
Accommodation refers to adjustments to workplace rules, standards, policies, or environments so an employee can continue to perform their job notwithstanding their disability.
Employees must inform their employer that accommodation is required and provide enough information to allow the employer to understand the employee’s functional limitations and the type of accommodation that is required. Employers are generally not entitled to a diagnosis, but they are entitled to information about the employee’s restrictions and capabilities and can seek clarification in this regard with the employee’s medical practitioner(s).
Once a request is made, employers must engage in a meaningful, collaborative, and cooperative process to identify reasonable accommodation options.
Examples of accommodations may include:
Modified work schedules;
Adjusted job duties;
Temporary reassignment or modified roles;
Remote work arrangements;
Physical changes to the workplace environment; and/or
Gradual return-to-work plans following illness or injury.
The nature of the employee’s disability, the employee’s role, and the operational realities of the workplace, will determine the appropriate accommodations.
The Limit: Undue Hardship
While the duty to accommodate is significant, it is not unlimited. Employers must accommodate employees up to the point of undue hardship.
Undue hardship occurs when accommodation would impose excessively onerous conditions on the employer. Some hardship is expected, but the question is whether the hardship becomes ‘undue’.
Factors typically considered when assessing undue hardship include:
Financial cost of the accommodation;
Health and safety concerns;
The size and resources of the employer;
Operational impacts on the workplace; and
The ability to reorganize duties or staffing.
Courts and the Human Rights Tribunal generally set a high threshold for undue hardship. Employers must demonstrate that they carefully explored accommodation options before concluding accommodation was not possible.
Employers need to take all reasonable steps to accommodate the employee prior to claiming undue hardship. If the employer fails to take proper steps to accommodate prior to claiming undue hardship, an employee may bring a claim for discrimination.
If an employee brings a claim for discrimination and is successful, the employer may be ordered to pay a damage award to the employee, re-pay the employee’s lost wages and expenses, or be ordered to do anything to put the employee back in the place they were in prior to the discrimination.
Bona Fide Occupational Requirements
In some cases, an employer may defend against a discrimination claim by demonstrating that a workplace rule is a Bona Fide Occupational Requirement (“BFOR”). A BFOR is a standard or rule that is a necessary requirement in carrying out the functions of a specific position of employment.
The Supreme Court of Canada established the governing test in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (“Meiorin”), which requires employers to demonstrate:
The workplace standard is rationally connected to the performance of the job;
The standard was adopted in good faith for a legitimate work-related purpose and
The standard is reasonably necessary, and accommodating the employee would create undue hardship.
This test ensures that workplace standards are legitimate and not unnecessarily exclusionary. An employer cannot claim they cannot accommodate due to a BFOR unless the above test is met.
In Meiorin, the Supreme Court of Canada, held that it was discrimination to terminate a female firefighter because she could not meet the aerobic requirement. It was held that meeting the aerobic requirement was not a BFOR because she could still perform her work as a firefighter with no risk to the public, colleagues, or herself.
Common Employer Mistakes
Accommodation claims often arise not because employers refuse accommodation outright, but because the process is mishandled.
Some common mistakes include:
Ignoring or delaying accommodation requests - failing to respond promptly can itself create legal risk;
Requesting inappropriate medical information - employers should focus on functional limitations rather than diagnoses;
Failing to explore alternative accommodations - employers must consider reasonable options before concluding accommodation is not possible;
Poor documentation - if a complaint arises later, employers must be able to demonstrate the steps they took to explore accommodation; and
Treating accommodation as a one-time decision - accommodation may need to evolve as circumstances change.
Avoiding these pitfalls can reduce the risk of human rights complaints and ensure proper steps to accommodate are completed.
Practical Takeaways for Employers
Accommodation issues often arise in complex and sensitive circumstances. While employers are not expected to achieve perfect outcomes, they are expected to approach the process reasonably and in good faith.
Employers should:
Respond promptly to accommodation requests;
Engage in open and respectful dialogue with employees;
Request appropriate documentation when necessary;
Explore reasonable accommodation options; and
Carefully document the steps taken throughout the process.
Taking these steps can help employers meet their legal obligations while supporting an inclusive workplace.
Need Advice?
Accommodation issues frequently require employers to balance legal obligations with operational realities. If you have questions about your organization’s duty to accommodate or how to respond to an accommodation request, a member of SVR Lawyers’ Employment Law Group would be pleased to assist.
