8.7 Employment Accommodation Policy and Procedure
|Approved By: ||Board of Governors|
|Original Approval Date: ||January 25, 2007|
|Date of Most Recent Review/Revision: ||January 25, 2007|
|Office of Accountability: ||Vice-President: Finance & Administration|
|Administrative Responsibility: ||Human Resources Office|
Wilfrid Laurier University is committed to providing equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, citizenship, creed, sex, sexual orientation, age, record of offence(s), marital status, family status, disability, colour or ethnic origin as described by the Ontario Human Rights Code.
The need for an employment accommodation policy has been recognized as essential from a human resources, human rights and employment equity perspective. In addition, employment accommodation is a legal obligation.
It is recognized that many of the barriers to equal participation by all people in our society exist because of inadvertence or lack of awareness of different needs, not because people have deliberately sought to discriminate.
Accommodation can be understood as a means of adjusting or modifying the work environment or the method of doing work, in order to address the individual needs of employees who are protected from discrimination under the Code, so that the university may benefit from their active participation in the workforce.
In order to meet the needs of individuals affected, the overriding principles of approach should be those of:
- Individualization: designing accommodation to meet the specific circumstances of each employee or job applicant
- partnership: involving the person requiring the accommodation, administrators and managers of the university, unions and any medical practitioners or other third parties with specialized expertise
- consultation: involving those in the partnership in development of the accommodation plan
- inclusion: ensuring that the person to be accommodated is involved in the process and plan design
- respect for confidentiality and dignity
Wilfrid Laurier University will support the accommodation of employees and job applicants who have a disability or require religious accommodation, in a manner which respects their dignity, is equitable and which enhances their ability to compete for jobs, perform their work and fully participate in employment at the university.
Although these are the most common grounds for accommodation requests, requests for accommodation under any of the other grounds of the Ontario Human Rights Code are possible and should be approached using the process described herein
To accomplish that goal, the university will work to achieve a workplace free of barriers by providing accommodation for the needs of those individuals covered by the Code, up to the point where it causes undue hardship for the university (Appendix B). Every effort will be made such that the impact of accommodation will not discriminate against another group protected by the Code.
(a) The Duty to Accommodate
The duty to accommodate refers to the university’s obligation to take steps to the point of undue hardship, to adjust or modify the work environment or the method of doing work in order to address the individual needs of employees who are protected from discrimination under the Code.
Individuals requesting accommodation are involved and included in the development of accommodation measures to address their need; likewise they have the responsibility to communicate any known accommodation needs and to cooperate in the accommodation process.
(b) Employment Accommodation
Employment accommodation is implemented in cases related to disability and religious observance. Employment accommodation is an ongoing process of adjusting or modifying the work environment or the method of doing work in order to address the individual needs of employees who are protected from discrimination under the Code.
The accommodation is based on individual circumstances and can include but is not limited to recruitment, selection, training, promotion, performance appraisal, benefits provision and any other condition of employment where the need for accommodation may be identified.
The process is consultative involving the employer, the employee and, where appropriate, employee unions, medical practitioners and other third parties with specialized expertise. In may result in specific temporary or permanent changes; services, adaptations or adjustments that enable an otherwise qualified individual to compete for jobs and perform the essential duties of a job.
Persons with Disabilities
Employment accommodation for persons with disabilities is the most common. The definition used in these guidelines comes from the Ontario Human Rights Code and is defined as:
- any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, and any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, or physical reliance on a guide dog or on a wheel chair or other remedial appliance or device;
- a condition of mental impairment or developmental disability;
- a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language;
- a mental disorder, or
- an injury or disability for which benefits were claimed or received under the Workplace Safety and Insurance Act.
Creed is a prohibited ground of discrimination under the Ontario Human Rights Code. Although it is not defined in the Code, Creed has been interpreted to mean “religious creed” or “religion.” While it is not possible to define these terms precisely, only beliefs, convictions and practices rooted in religion, as opposed to that that are secular, socially based or conscientiously held, are protected. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in the divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment.
Persons who celebrate their religion on days which would otherwise be working days need to be accommodated in order to practice their religion. For example, it is equitable that people who celebrate religious holidays which conflict with their regular work schedule be allowed to take time off for their religious observance.
(c) Who is Responsible?
The process of accommodating individuals is a joint obligation of the university, the employee, and unions representing employees, where applicable. Those persons in senior administrative and managerial positions, such as Department Chairs, Deans and Managers (hereinafter referred to as officers of the university) will generally be the first contact for employees requesting accommodation.
Together, in consultation with Human Resources, and, where appropriate, medical practitioners and other third parties with specialized expertise, they will identify the most appropriate method of accommodation, which meets the needs of the employee in the most equitable and financially responsible manner.
IV. ROLES AND RESPONSIBILITIES
Although it is expected that the employee will take primary responsibility for initiating the request for accommodation, there may be some cases where the request for accommodation will be initiated by an administrator or manager of the university, the Human Resources Department, the Workplace Safety and Insurance Board (WSIB) or another source. Regardless of who initiates the request there are several key players in the process of accommodating individuals and their roles are described below.
(a) Person Requiring Accommodation
The employee will notify the appropriate officer of the university regarding the need for job accommodation. The employee will identify any known accommodation needs and will cooperate with reasonable requests for evidence establishing his/her accommodation needs. The employee will cooperate with the university in the accommodation process.
(b) Officers of the University
If such person has reason to believe there is an accommodation need or s/he receives a request, s/he has the responsibility to promptly and positively initiate action on the request in a timely fashion upon becoming aware of the need and either work toward resolving the accommodation issue, or forward the issue to the next level officer who has the authority to affect the accommodation.
The Human Resources Department must be contacted for consultation and guidance. They will assist in the preparation of the accommodation plan. Deans and Managers are responsible for indicating the number and types of accommodations made annually, including numbers of employees on flex-time for accommodation, religious days granted, etc.
(c) Equity Office
The Equity Office is available throughout the accommodation process as a resource and is responsible for tracking and maintaining statistics on accommodation, including reports and statistics on the types and cost of accommodation made (without identifying individuals).
(d) Union Representatives
All bargaining units on campus have a joint responsibility to facilitate reasonable accommodation. An employee may choose to contact his/her union representative who will participate in the process. Any accommodations that require agreements outside of the respective Collective Agreement must include union representation.
(d) Third Parties
In some cases, information may be requested from medical practitioners and other third parties with specialized expertise. This is to be done in consultation with the Human Resources Department.
A. ACCOMMODATING EMPLOYEES WITH DISABILITIES
(a) For Faculty
Any faculty member requesting accommodation must make a request to their dean. The dean is responsible for ensuring that a written description of the accommodation plan is prepared for any member of the teaching staff.
Faculty members receive letters of appointment which state the requirements of their positions in regard to teaching, research and other activities. The accommodation process for any such person must take account of these requirements and develop a plan that involves some combination of any or all of these same activities.
An accommodation plan, which involves a workload reduction, may have significant implications for the academic unit(s) involved and this needs to be addressed in the accommodation process. It must address the issues of the timing and expectations of the academic assessments that are required for the granting of tenure, promotion and career-progress/merit salary awards. The plan must ensure that all such assessments will be equitable.
(b) For Staff
Any staff member requesting accommodation must make a request to the manager of the department or faculty.
In determining how to accommodate a staff member with a disability, the first step is to determine essential duties as defined in the job description. Flexibility in considering the way functions can be performed is necessary in order that the person being accommodated can achieve outcomes in a way which may be different from traditional methods. Accommodation of non-essential duties may be accomplished by using an alternate method for fulfilling these functions.
(c) Recording an Accommodation Plan
For any employee, the respective dean or manager will prepare an accommodation plan which will outline the nature of the accommodation to be provided (see Appendix A for a checklist). Input will be obtained from the employee and, where applicable, the employee’s union representative. It is particularly important that all parties work together to establish objectives for the individuals' accommodation plan, to explore the range of accommodation options available and to develop criteria that will be used to select from among the various options.
The following are key components of the employment accommodation process for individuals. They are intended to help ensure timely and effective outcomes. The components should be interpreted with flexibility and modified according to the specific needs of each job applicant and employee:
- Identify needs
- Identify and analyze barriers to performance or participation
- Define accommodation objectives
- Provide interim accommodation
- Investigate, test and select accommodation options
- Implement accommodation
- Provide accommodation training if required
- Follow-up and evaluate
(d) When an Employee Cannot be Accommodated in Current Position
In some cases, it will be reasonable to accommodate an individual in another position. The Human Resources Department, working with appropriate university officers, the employee, and union if applicable, will attempt to place the employee in another available position. This may require the assistance of third parties with specialized expertise.
The factors which will be considered in determining whether the individual will be placed in an alternate position include:
- Whether the individual can perform the essential duties of the alternate position;
- Whether the individual is currently qualified for the alternate position or can be trained to perform it within a reasonable time;
- Whether placing the individual in the alternate position would result in undue hardship;
- Whether the alternate position is acceptable to the individual seeking accommodation.
(e) Job Redesign
If the accommodation for an employee results in a reduction of hours or if there is a significant re-allocation of work duties to the extent that the appointment or job has changed, the position will be reevaluated. The Accommodation Plan may involve long term job redesign for co-workers for the duration of the accommodation. Accommodation is a requirement of the Code and tribunal rulings have indicated that third party preference cannot prevent the provision of accommodation; however, no co-worker will be disadvantaged because of the accommodation.
(f) Union Agreements
The union representing the individual seeking accommodation has a duty to cooperate in the accommodation process. A term of an agreement cannot act as a barrier to providing the kinds of accommodation an employee might require. It is the joint responsibility of the employer and the union to work out a solution with respect to any accommodation involving a conflict with an existing agreement.
Further, nothing in this policy shall prevent any union from exercising their respective negotiated processes on behalf of any of their members.
(g) Responsive Dispute Resolution
The faculty or staff member who has requested the accommodation may file a written complaint when they feel that their needs for accommodation is not being adequately met. The complaint is filed through the University's Harassment/Discrimination Officer.
An employee retains their right to file a grievance under the appropriate union collective agreement or policy.
(h) Financing the Accommodation
Costs for accommodations are generally inexpensive. Any requests for purchases should be made to the faculty or department. However, if an accommodation cost exceeds the ability of the faculty or department, the request should be forwarded in writing to the appropriate Vice-President.
B. ACCOMMODATING EMPLOYEES FOR RELIGIOUS OBSERVANCE
Wilfrid Laurier University is committed to respecting the religious beliefs and practices of all members of the community. The university endeavours, within the parameters of its mandate as a secular institution, to accommodate employees who, by reason of a bona fide religious obligation must be absent from work for all or part of the working day.
Religious observance may be accommodated through the normal scheduling of work. If the day of religious observance falls on a day the employee is scheduled to work, and may not be accommodated through the normal scheduling of work, the employee is entitled to use existing provisions for time off without loss of pay or have the day off without pay.
Because in most instances these days are known in advance, the employee should notify his/her Dean, Chair, Director or Manager as early as possible in order that, if necessary, alternate plans can be made in the workplace.
University officers are encouraged to seek advice from the Equity office or Human Resources Department.
C. ACCOMMODATING JOB APPLICANTS
The University has a legal responsibility to accommodate job applicants as well as employees.
Applicants who possess the requisite skills to perform the essential duties of a job, and who have accommodation needs, are to be considered on an equal footing with applicants without such needs. Applicants must be treated with dignity and respect in arranging a fair and equitable interview process.
(a) Participating In the Selection Process
The person responsible for arranging the interview process for job applicants must ask the applicant if accommodation is needed to participate in the selection process. If accommodation is requested, the department should contact Human Resources who will assist in arranging reasonable and appropriate accommodation (e.g., translators, documents in braille, wheelchair accessible interview room, rescheduling of interviews).
(b) Discussing Accommodation on the Job at the Interview Stage
The applicant may raise the issue of accommodation needed to perform the duties of the job, or the interviewer(s) may make inquiries of all candidates related to their ability to perform the essential duties of the job. Discussion may take place about the type of accommodation that may be required by any applicant in such circumstances. Job applicants must be assessed solely in terms of the qualifications required for the job and their ability to perform the job.
(c) Successful Applicants Who Require Accommodation
An applicant who has been selected during the job competition may indicate the need for accommodation at the time of job offering. Steps to be taken for accommodation will follow the procedures for employees.
APPENDIX A - CHECKLIST: EMPLOYMENT ACCOMMODATION FOR PERSONS WITH DISABILITIES
|□ Is there a disability?|
|_____||medical evidence (obtain release for medical information or equivalency)|
|□ What is the extent of the disability?|
|_____||physical demands analysis to be provided to physician or other expert|
|_____||medical evidence of the accommodation required|
|_____||ensure medical evidence links restrictions and accommodation to job requirements and the individual|
|_____||follow-up if medical evidence in inadequate or inaccurate|
|□ Can the employee’s own job be modified short of undue hardship?|
|_____||work redesign, reconfiguration of tasks|
|_____||alternative schedules and hours|
|_____||reassignments and other available jobs|
|_____||use of equipment, assistive devices|
|_____||temporary rehabilitative assignments|
|□ Has a thorough review of other “available” positions been conducted?|
|_____||inside the bargaining unit|
|_____||outside the bargaining unit|
|□ Has the cooperation of the employee been secured?|
|_____||information about extent of restrictions|
|_____||job modification suggestions|
|_____||written consent for release of medical information|
|□ Has the cooperation of the union been secured?|
|_____||assessment of contractual restrictions|
|_____||proposals for contractual modifications|
|_____||consideration of impact on rights of others|
|□ What is the level of accommodation required?|
|_____||non-financial impact on the department and University|
|_____||financial impact on the department and University|
|_____||costs associated with accommodation|
|_____||potential cost reduction measures considered|
|_____||outside sources of funding available to assist|
|_____||health and safety requirements|
|_____||impact on other employees|
|_____||impact on contractual and collective agreement obligations|
|□ Are the means of accommodation consistent with the dignity requirement?|
|_____||are there other methods of accommodation available which would better promote dignity without imposing undue hardship?|
|□ Is there a process for ongoing review of the prospects for and effectiveness of accommodation?|
|_____||has there been any change in circumstances which would impact upon the availability of accommodation?|
|_____||regular, consistent monitoring and communication with the employee|
|_____||regular and documented input from employee, supervisor, doctor, other medical|
|_____||input from the union|
|□ Is there documentation of each step of the process?|
|_____||information from employee|
|_____||medical information and prognosis|
|_____||copies of correspondence|
|_____||notes of telephone calls and interviews|
|_____||record of accommodation discussion with union, employee|
|_____||record of modified duties alternatives considered, scope of modifications|
|_____||record of all costs, safety risks associated with alternatives|
|_____||record of all cost reduction measures explored/initiated|
|_____||record of all risk reduction measure explored/initiated|
|_____||record of why alternatives accepted/rejected|
APPENDIX B - UNDUE HARDSHIP
The Code provides that the employer must accommodate the disability related needs of a person, unless it can be demonstrated that no appropriate accommodation exists or that providing the accommodation would cause undue hardship to the employer. The factors considered in assessing undue hardship include cost, outside sources of funding, if any, and health and safety factors may also be relevant.
Undue financial hardship occurs when the cost for providing accommodation significantly affects the university’s capacity to deliver services or programs.
Outside Sources of Funding:
The Code requires that outside sources of funding to offset the cost of accommodation, such as grants, government subsidies and loans, be considered before an employer claims undue financial hardship.
Health and Safety Risk:
Situations may exist where health or safety requirements, legislated or not, effectively exclude a person with a disability from employment. The university is obliged to accommodate the individual by waiving or modifying the health and safety requirement, and providing alternative precautions where possible.
Even with alternative precautions in place, a health and safety risk to a person with a disability or to others may remain. If the remaining risk only affects the person with a disability, the department may be obliged to explain the potential risk to the individual and allow the person to decide if she or he will assume the risk. If the remaining risk affects others and the seriousness of the risk outweighs the benefits of the equality, "undue hardship" exists according to the Code.
In determining whether an obligation to modify or waive a health and safety requirement creates a significant risk to others, consideration should be given to:
- whether the modification or waiving of the requirement is reasonably likely to result in a serious risk to the health or safety of individuals other than the person seeking accommodation;
- the other types of risks which the person responsible for providing accommodation is assuming;
- the types of risk accepted within society as a whole, reflected in legislated standards.
Therefore, in some circumstances, departments may be obliged to modify or waive health and safety requirements in order to effect accommodation, where this does not cause undue hardship.
Where a waiver or modification of a health and safety requirement is believed to result in a risk to others, it must be determined on the basis of objective empirical evidence whether the risk is serious. The following factors should be considered in making this determination:
- the nature of the risk: what could happen that would be harmful?
- the severity of the risk: how serious would the harm be if it occurred?
- the probability of the risk: how likely is it that the harm will occur? Is it a real risk, or merely hypothetical or speculative? Could it occur frequently?
- the scope of the risk: who will be affected by the event if it occurs?
- in both instances of assessing risk to persons with disabilities and risk to others, it should be noted that section 47(2) of the Code requires that, in the event of a conflict between the Code and other provincial legislation, the Code requirements prevail. Therefore, in some instances, departments or units may be obliged to modify or waive health and safety requirements in order to effect accommodation.