Accommodation, Adjustments and Disclosure
Accommodation, Adjustments and Disclosure
Connor Levy of Harris & Company LLP discusses an employer’s legal duty to accommodate and consideration of disclosure. What is reasonable accommodation?
(Connor Levy) Just wanna start a little bit by talking about the perspective that I come to today’s event with.
So as you heard, I’m a lawyer, and as part of my day-to-day practice, I advise employers on employment issues including accommodation, disclosure, discrimination-related matters. But as you heard, I also come to it from the other side, ’cause I have a younger brother who has autism.
My younger brother, Adam, is 27. So since he finished school, high school, almost a decade ago, been trying to find the perfect situation employment wise, the right job, the right fit for him. He’s working two part-time jobs. But over the last six months they actually made some tremendous progress with him. And I think his story really highlights why this topic is so important to me, and hopefully, to all of you.
So within the last month, I believe this is his third week, my brother started a new job. And it’s three days a week, and that, in and of itself, is tremendous, because he never had a job before that was more than one or two days a week. And as part of this new job,
he actually has a title. He is a warehouse technician. He’s a technician. And hearing the pride that he says that with really means a lot to him, and to me and my family. And not only that, he’s proud of where he is right now. But I’ve heard him say things like, “Well, I’m a technician right now but eventually, I’m gonna be part of one of the crews that goes out into the community and works outside of the warehouse.”
So he’s a technician now, but he’s actually looking ahead, and excited about what this job brings. So that’s sort of the perspective that I’m coming into today with. Starting with the legal side, though.
Even if you don’t know Section 13 off the top of your head, and why would you, you are aware of it. To paraphrase, under Section 13 of the Human Rights Code, a person cannot refuse to employ or discriminate against an individual in their employment on the basis of the protected grounds under the code, which of course includes physical disabilities and intellectual cognitive disabilities.
So I think we’re all on the same page about that. However, what you might not know about, Section 42. And I’m not gonna paraphrase this one because the language is very important. So under Section 42, “it is not discrimination to advertise, adopt, or implement an employment equity program that has as its objective the amelioration of conditions of disadvantaged individuals or groups who are disadvantaged because of physical or intellectual disabilities.” So let’s keep that in mind as we proceed through the rest of these legal principles.
The duty to accommodate.
Employers have a duty to accommodate individuals in the workplace who have a disability. This duty applies up to the point of what’s referred to as undue hardship. And I think we’re all familiar with the term, accommodation. And I’m gonna keep coming back to it throughout the presentation. But essentially, when we talk about accommodations, we’re talking about altering or modifying a portion of the job, the actual job, or perhaps part of the workplace, the physical workspace, of course, in order to allow an individual with some sort of disability to succeed in the position.
Now as I said, this duty to accommodate applies to employers. It applies with respect to all employees up to the point of undue hardship. You’ve probably heard this term before. But it’s important to really think about what undue hardship means. This is the standard that an employer needs to reach in order for them to be able to say, we cannot accommodate this individual anymore.
It’s not mild hardship. It’s not reasonable hardship. And it’s definitely not, oh, jeez, this sounds like a lot of work hardship.
It’s not the standard. So keep that in mind. ‘Cause some hardship when you accommodate an individual is always to be expected. Now, to reach the point of undue hardship, as I said, it’s a high bar. The expectation is that employer is going to be able to use objective real information or evidence to say that, we logistically, or from a cost perspective, can simply not do this. I wanna be clear that it’s not enough to make a general statement saying, “sorry, would like to, too expensive.” Or it’d be too difficult because of our office, or what have you, okay? If you’re saying that you’re at the point of undue hardship with someone, you have to have real objective evidence to back it up. And I will also add that the bigger an organization that you work for, the harder it’s gonna be for you to say that, because big company, you have lots of resources at your disposal. And from the list I saw today, it seems like all of you are from big companies. So (clicks tongue) too bad on that one.
Now, all of that being said, an employer is not expected to accommodate an individual to the point of undue hardship if doing so would prevent the employee from completing what are referred to as bona fide occupational requirements. Now, for an aspect of a job, or a key work component of a job, to be considered a bona fide occupational requirement, an employer must demonstrate that this requirement is so critical to the actual performance of the job that to accommodate an individual, an employee, in performing that aspect to the job, that you just simply can’t do it.
It all sounds a little abstract, the way I’m talking about it right now, but the classic example that you hear in first year law school is – take an airline, and they are hiring pilots. And as you probably expect, pilots have certain vision requirements that they have to adhere to. I think it’s 20/20 vision. Maybe someone from the airport can correct me on that. But good vision is a bona fide occupational requirement of being an airline pilot. And for an airline to accommodate an individual with respect to this bona fide occupational requirement, if they didn’t have good enough vision, that would be considered undue hardship. So that’s sort of the overarching legal framework that we’re talking about today. And I’m gonna keep touching on these principles as we move through this.
Moving on now to the more practical side of things. Before we get into the recruitment, I just wanna talk about two considerations you should have in mind. The first being unionized workplaces. I would recommend that before you embark on a drive like this, that you really go out of your way to consult the union. Talk to your union reps. Talk to members of the union executive, okay? This is important. Get them on board. And something that’s key to remember as you’re doing this is the duty to accommodate applies not just to employers, but also to employees. I’m gonna talk about that. And actually to the union as well.
Being the employer, you’re probably held to a slightly higher standard, but you should be working in conjunction with the union in order to successfully accommodate an employee. Keep that in the back of your head. Secondly, job descriptions. Before you begin recruiting, develop written job descriptions for the work that you’re looking to hire for. Really think about the job that you’re hiring for. Think about the key critical components. These are gonna be the bona fide occupational requirements that we were talking about. Really think about them, so you can put them in a job description. And then when you’re hiring someone, you can say, this is what we need, can you do this? So written job descriptions are absolutely the way to go.
Getting in now to some practical tips for the actual recruitment of individuals. Number one, when you’re advertising a position, choose the right language. I recommend that you make it extremely clear that you’re looking to hire an individual with a disability. So some language that you might consider including in your job advertisement, or what have you, will be things like we are an inclusive employer. We are an accessible employer. Welcomes and encourages applications from people with disabilities. Accommodation will be provided in all parts of the recruitment and hiring process.
Secondly, accessible applications. Think about how to make your application process more accessible. I think we’re all familiar with long written applications that you have to fill out, or complex online things that you have to go through, and that’s just the first hurdle. Unfortunately, sometimes people struggle with this. And limiting your pool of potential candidates just to people who can get through the first stage of the application process, well, you might be missing out on some great employees just ’cause they struggle with likely the written portion or something like that. So to combat that, some options you should consider. Allow verbal applications, either in-person or over the phone. Also, think about focusing less on the written portions of an application, including the cover letter, and focus more on other aspects. Focus on the resume. Focus on the work experience. Focus on the references. These are all great options to make applications more accessible.
Thirdly, some alternative methods that you should think about in order to get the word out. And I’m assuming most of your organizations are already using this. But employment agencies, community organizations, accessible web-based job boards, employee networking groups such as this, BC Partners in Workforce Innovation, of course. And also one thing you might not have thought of, universities and colleges. A lot of them have disability support groups, and working with them can be a great option. So that’s recruitment.
Now hopefully at this point, you’re at the position where you’ve written your job descriptions, you’ve put the word out, you got some applicants, and now you wanna meet them.
Moving on to the interview. Well, you might not realize this, but the accommodation process applies not just to when someone’s already your employee, but actually applies to the interview portion as well. On that note, it’s okay to ask an applicant ahead of an interview whether they require an actual accommodation for their interview, and if there’s anything you can do as an employer to make the situation easier for them. So let’s be honest, interviews are the worst, even at the best of times. So you wanna do everything you can as an employer to allow this individual to put their best foot forward. So some practical tips on that.
Number one, location. Obviously, you can’t do much about where your office is located and where you’re conducting the interview, but you probably have some control over where in your building you are actually having the interview take place. So try to pick a place for the interview that’s close to reception where it’s easy to figure out. Also, something that’s easy to do from your perspective as an employer, provide directions to your building. Provide transit information for getting to your building, information about the closest accessible parking. From your perspective, it’s not much effort, right? You probably already know this off the top of your head. But again, anything you can do to make the applicant’s life easier, to allow them to put their best foot forward makes a tremendous difference.
Secondly, in terms of an interview location, try and find somewhere quiet, somewhere you can really talk. Going back to my brother again. Now, Adam, ever since he was little, always absolutely fascinated with machinery, and trucks, and industrial equipment. And I know, beyond a doubt, that if he were interviewed on a shop floor, or with a lot of machinery and equipment were laying around, or an environment, even a busy office environment with people walking around, he would be distracted. And I would probably be distracted, too, ’cause factories sound pretty interesting. I don’t really know how they work. But anyways, choose a quiet location where you can really talk and get to know the person.
Ask them these important questions about what they can do, and whether you can actually make this whole employment relationship work. Give the individual the option of bringing in a support person or an advocate. Not so much ’cause you want someone there to speak on their behalf, but again, just dealing with some of the pre-interview stress like finding the right space could make a big difference.
Finally, allow extra time. The traditional interview environment would be people sitting, five applicants next to each other in chairs. You kind of got sweaty palms. Kind of feeling under-dressed or overdressed. That’s not ideal here. Give yourself lots of time to talk to this person, because it’s very possible if you’ve only given yourself 15 minutes, you’re not gonna have time to go into the things you need to talk about, require about accommodation, about limitations, about their ability to actually do the job. And the last thing that you want is to feel rushed as you’re going through this. Getting in now to the actual interview, and really the types of questions that you should be asking.
Well, first things first, the mindset that you come into the interview with as a hiring manager, or a recruiter, is so key. You really want to as much as you can frame your interview questions around the individual’s abilities. What can you do? Simply being aware of the language you use makes a difference. So questions like, what parts of the job can you do? What hours can you work? This is the kind of mindset that you wanna come into the interview with.
Now, as for the actual interview, what you’re figuring out is if this individual is a good match for the job, and your organization. And the same is true going the opposite direction. Are they a good match for your company? So be straightforward. Really think about those written job descriptions. Tell them the key components to the job. Be very upfront. What would the job look like? What are the responsibilities? What are the ideal hours? Who would they be reporting to? Really think about all that. Tell them all of the information that you can, and then ask them, what parts of this do you think you can do? And which parts do you think you might need some assistance with? And let them tell you, okay?
On the flip side, avoid the classic abstract hypothetical interview questions. You know, the what tree do you relate the most to if you were on the savanna? I feel like we keep talking about savannas.
If you were on the savanna, what animal would you most relate to? For those of you who were at the Board of Trade event a few months ago, one of the great anecdotes that we heard was a hypothetical question saying, If you were such and such a situation in this workplace, what would you do? And this individual quite rightly responded, “I’ve never worked here before, so how would I know?” So yeah, fair enough. I mean, how do we all know we would react?
Also, if at all possible, allow for a hands-on portion of the interview. Just because someone doesn’t necessarily interview well, it’s not really a good indicator whatsoever that they would not be successful in the job. So depending on the job, this might be possible, take them to their workstation. Say, this is what you’d be doing. How would you go about doing this? It’s really a great idea. Now all this being said, there’s no avoiding the fact that ’cause you’re here, your organization is actively seeking out individuals with disabilities. And accordingly, you might need to know if the individual has any limitations regarding the key aspects of the job that we’ve been talking about. Now ideally, you might know this information ahead of time, or the applicant will be very upfront about their limitations. But you might be in a situation in which you need to ask, ’cause you simply don’t have the information you need.
So how do you ask these questions? And keep in mind, always keep this in mind, an applicant is under no obligation to disclose any part of their disability to an employer unless it would prevent them from performing essential component of the job. As an employer, you’re not entitled to a diagnosis, or specific information, just information as it relates to the actual key aspects of the job.
So some questions to that effect. Is there any aspect of the job you would have difficulty performing? What are your abilities in respect to the job? Is there anything that might impact your ability to do this job?
This, of course, begs the question, what should you avoid asking? Well, broad, sweeping, overly invasive questions are not really the ideal way to go about this. You might laugh when you see some of these, but these are all real examples I’ve seen.
Do you have any disabilities? What is the name of your disability? And of course, the old chestnut, will you undergo a medical examination as part of the application process? All things better left completely unsaid and avoided. So for these reasons, we really recommend that you develop, if you don’t already have one, a standardized list of questions. Maybe not super standardized, but at least a template. ‘Cause it makes the individual’s lives easier when they really feel that they’re competing fairly with the other applicants. And also, just from the perspective of your hiring managers and the recruiters, you don’t want them to have to be worried about what they can say and what they can’t say. So if you have a template prepared that they can go off of, that really makes the situation better for everyone.
Now, going back to accommodations again for a minute. As an employer, as I said, you have the right to ask about an individual’s limitations, and if they would require an accommodation to perform the job safely or efficiently. So I recommend that during the interview if it’s going well, and you feel like you might have a good fit on your hands, feel free to ask about what kind of accommodations they actually need. Have these conversations up-front.
In my line of work, we get asked a lot about specific accommodations. Do you think this works? Is this too much? What should we be doing? And it’s really hard to provide general advice about accommodations, ’cause almost always the best accommodation is gonna be unique to the circumstances. It’s gonna be unique to the individual, the job, and what your organization is able to offer. But generally, general accommodation tips that seem to work, you already know these, would be things like shorter shifts, more breaks throughout the day, modified schedule. So really getting away from the traditional nine to five, as well as allowing the opportunity to work from home in some instances. Just some general tips.
Now, let’s say you’ve gone through the whole process, written job descriptions. You’ve consulted your union despite your better judgment. You interviewed someone. It went well. You think you’ve got a fit. Well, if you wanna hire this person, I really recommend that you create employment framework. It’s a pretty catchy name. A lawyer came up with it, so be nice.
Sort of not a contract or anything like that, but a written document that both parties can go back to. And you want to hammer this out ahead of time, to really lay out all aspects of the employment relationship moving forward. It’s so much easier to be proactive and talk about some of these tough issues you can see here ahead of time rather than having to be reactive, or reactionary, if things go south. So what would an employment framework include? What is the job? What’s involved as part of the job? What are the key job duties? What are the applicant’s abilities with respect to those core duties of the position?
If they have any limitations, and if there are any accommodations that are being offered, write those down, include those, put them in writing.
I think this one’s underrated. How will each party communicate or check in with each other? Maybe at the beginning, you wanna have a weekly sit-down with this individual, maybe monthly, just to check in. Not even about the job, necessarily, or how they’re performing, but how do they feel? Are they happy? Is the space working? Is the manager working? Just having these open lines of communication. And maybe also consider having a separate person, not the employee’s direct manager who they can go to, someone in HR, someone in health and wellness that they can go and speak to.
Let’s be clear, you’re still hiring someone here to be a helpful employee, to do an actual job. So that employee is gonna be held to the same standard, pretty much, as every other employee. So you’re gonna evaluate them, and you should evaluate them. So talk ahead of time about how evaluations work with your company. They quarterly? Are they in writing? Do they fill out a questionnaire? What works for the person? Maybe they wanna have straight-up feedback from their manager more often. Maybe that would work better for them. But at least talk about it, so that you know ahead of time.
And finally, ending the employment relationship. It seems like a lot of employers, this is what scares them off from hiring people with disabilities. They just think, if it doesn’t work out, this is gonna be so much more work than if I hadn’t gone down this route. Well, I just say, talk about it ahead of time, ’cause it might not even be that you don’t think this person’s a fit for your company. They might not like your company so much. Your company might not be as great as you think it is. Talk about it ahead of time. Have these conversations, and discuss options and alternatives that you might need to have in place if things don’t go great.
But generally speaking, any information that you as an employer get from an employee about a disability, about their limitations, and even about the accommodations you’re putting in place, that information is all confidential. And I suggest that you really operate on a need-to-know basis. Probably there aren’t actually that many people in your organization that need to know all of this stuff. It might just be the direct manager, and maybe someone in HR, or health and wellness, who’s in charge of implementing these procedures.
More importantly than that, though, have a conversation with the individual. Ask them what they’re comfortable with. They’ve been dealing with this a lot longer than you have, and they have a much better idea of how they’d like to proceed, especially as it pertains to co-workers.
Okay, everyone. Well, that does it for me. I will stick around for any questions or if anyone wants to talk about any of this later. Otherwise, thank you very much.