In Effect: 2019-03-18
- Canadian Human Rights Act
- Employment Equity Act
- Federal Public Sector Labour Relations Act
- Privacy Act
- Treasury Board Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service
- Applicable collective agreements Commissioner’s Directive 001 – Mission, Values and Ethics Framework of the Correctional Service of Canada
To ensure managers/supervisors, human resources practitioners, and employees understand their legal obligations, their roles and responsibilities, and their rights regarding the duty to accommodate
To provide tools to facilitate the accommodation process
To outline the procedure to follow in order to request and to provide accommodation
Applies to all Correctional Service of Canada (CSC) indeterminate and term employees, including trainees, and applicants for employment with CSC (where applicable)
Applies to all aspects of employment, including but not limited to: recruitment, selection, training, promotion, deployments, work arrangements, and termination of employment
- What is the Duty to Accommodate?
- Prohibited Grounds of Discrimination
- Limits to the Duty to Accommodate
- Undue Hardship
- Bona Fide Occupational Requirement
- Roles and Responsibilities
- Accommodation Process
- Recognizing the Need for Accommodation
- Meeting with the Employee to Discuss the Request for Accommodation
- Gathering and Reviewing Relevant Information Pertaining to Employee’s Accommodation Request and Assessing the Request
- Making an Informed Decision Regarding the Accommodation Request
- Implementing and Communicating the Decision Regarding the Accommodation Request
- Following Up and Maintaining Records of the Accommodation
- Medical Clarifications and Assessments
- Ergonomic Assessments of Workstations
- Personal Assistive Devices
- Adaptive Computer Technology
- Accommodation and the Staffing Process
- Funding for Accommodations
- Privacy and Confidentiality
- Annex A - Cross-References and Definitions
- Annex B - Limits to the Duty to Accommodate
- Annex C - Diagram – Workplace Accommodation Process in CSC
- CSC commits to fostering an inclusive workplace where all employees are treated with respect and dignity in accordance with CSC’s Values Statement.
- CSC acts in a manner consistent with its obligation under the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and the Employment Equity Act.
- CSC provides a workplace that ensures equal opportunity free from discrimination based on race, colour, national or ethnic origin, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or an offence for which a pardon has been granted or a record suspension has been ordered.
What is the Duty to Accommodate?
- The duty to accommodate in the workplace is a legal requirement for employers to proactively eliminate employment standards, practices, policies, requirements, procedures or rules that have or may have a discriminatory impact on an individual or group of individuals on the basis of a prohibited ground or human attribute identified in the Canadian Human Rights Act or the Employment Equity Act. In short, the duty to accommodate protects individuals from being denied opportunities or being discriminated against on the basis of a certain personal characteristic known as a prohibited ground.
- The central purpose of the duty to accommodate in employment is to promote, within the bounds of reason, the ability of individuals to fairly and equally participate in the workplace through the elimination of the discriminatory effects of workplace standards.
Prohibited Grounds of Discrimination
- Canadian law prohibits discrimination based on any of the 13 grounds identified in section 2 of the Canadian Human Rights Act. CSC has a duty to accommodate employees to avoid such discrimination up to the point of undue hardship. The 13 grounds are:
- national or ethnic origin
- sex (includes pregnancy)
- sexual orientation
- gender identity or expression
- marital status
- family status
- genetic characteristics
- an offence for which a pardon has been granted or a record suspension has been ordered
- disability (includes physical or mental).
Limits to the Duty to Accommodate
- Accommodations can cover a wide variety of situations, and therefore, many different solutions are possible. However, the duty to accommodate has limits. A list of some practical examples of what the duty to accommodate does not involve can be found in Annex B.
- CSC is required to provide accommodation up to the point of undue hardship.
- There is no precise legal definition of undue hardship or standard formula for determining undue hardship. Each situation should be viewed as unique and assessed individually. Factors considered in undue hardship include health, safety and cost.
- Undue hardship cannot be based on an assumption or an opinion, or by simply saying there is some cost. Jurisprudence has established that for federal departments and agencies, the claim of undue hardship on the basis of cost may not be sufficient. CSC must prove the accommodation will cause undue hardship by providing evidence that all reasonable options have been explored.
- Prior to claiming undue hardship, managers/supervisors must seek advice from the Regional Duty to Accommodate Advisor.
Bona Fide Occupational Requirement
- A bona fide occupational requirement is a standard or rule that is integral to carrying out the functions of a specific position. For a standard to be considered a bona fide occupational requirement, an employer has to establish that an accommodation or a change to the standard would create undue hardship.
Roles and Responsibilities
- Although the duty to accommodate is primarily the responsibility of CSC, a successful accommodation requires the cooperation, as well as collaboration, of multiple parties. These parties may include, but are not limited to, managers/supervisors, employees, bargaining agent representatives, and Regional Duty to Accommodate Advisors/Labour Relations Advisors.
- CSC is responsible for:
- eliminating barriers that prevent employees from accessing, or being included in the workplace
- minimizing the need for individual accommodation by regularly reviewing rules, policies, and practices to ensure that they are not discriminatory
- ensuring that all employees and job applicants are advised of their right to be accommodated
- dealing with requests for accommodation in a timely, confidential and sensitive manner
- providing individual accommodation up to the point of undue hardship
- ensuring policy is effectively implemented
- ensuring policy, programs, collective agreements, etc., do not, in themselves, create barriers to full participation and productivity.
- Managers/supervisors are responsible for:
- fostering an inclusive work environment by treating all employees and job applicants with respect and dignity in accordance with CSC’s Values Statement
- identifying and eliminating barriers that prevent employees from accessing, or being included in the workplace
- understanding CSC’s obligations and its accommodation process
- being proactive and accountable for managing the accommodation case and monitoring accommodations in a timely, confidential and sensitive manner
- ensuring each accommodation case is treated on an individual/case-by-case basis
- communicating with the employee and ensuring that they are a part of the accommodation process
- acting professionally and respectfully towards individuals who require accommodation.
- Employees are responsible for:
- requesting an accommodation when needed
- submitting requests for accommodation in good faith
- cooperating with the manager/supervisor by providing relevant information and appropriate documentation to support the request for accommodation
- cooperating and participating in the accommodation process. The duty to cooperate involves working with the manager/supervisor to find appropriate accommodation solutions
- considering all accommodation proposals brought forth by management that effectively respond to the accommodation request
- allowing a reasonable amount of time for the manager/supervisor to review the accommodation request
- advising the manager/supervisor if accommodation measures need to be changed or if the agreed-upon solution has not worked as it was intended, and explore ways to modify the arrangements
- acting professionally and respectfully towards individuals who require accommodation.
- Bargaining agent representatives are responsible for:
- representing employees who require accommodation, when requested by the employee
- adopting a problem-solving approach to an accommodation
- ongoing monitoring to assess whether the accommodation is working and helping address any associated issue that may have surfaced
- acting professionally and respectfully towards individuals who require accommodation.
- The National Manager, Duty to Accommodate Program, is responsible for:
- developing, implementing and maintaining standard procedures and related guidelines for the Duty to Accommodate Program
- monitoring the regional/local program implementation (i.e., training, monitoring, advice and program development)
- providing advice and guidance to the Regional Duty to Accommodate Advisors regarding complex cases
- consulting with central agencies, federal/provincial regulatory bodies and other levels of government on various aspects and issues pertaining to the Duty to Accommodate Program
- providing interpretation and guidance with respect to legislation and central agencies’ policies, programs and initiatives related to the duty to accommodate (e.g., Canadian Human Rights Act) to senior management, stakeholders and managers/supervisors
- supporting a consultative and collaborative relationship between CSC management and employees, employee representatives and other relevant stakeholders on the various aspects and issues pertaining to the Duty to Accommodate Program.
- Regional Duty to Accommodate Advisors are responsible for:
- supporting the development, implementation and delivery of CSC’s Duty to Accommodate Program by monitoring and reporting on the effectiveness of the Program and its compliance with the applicable legislation and policies, and by providing recommendations for improvement
- providing advice and guidance to managers/supervisors and other Human Resource Management employees on case-specific accommodation matters, the Duty to Accommodate Program, as well as related legislation and policies
- being available for consultation at any step in the accommodation process.
- An accommodation is implemented on a case-by-case basis and the process should be as uncomplicated as possible. The process should respect the dignity and privacy of the person being accommodated. There is no set formula for accommodation as each person has unique circumstances. However, the accommodation process must be applied in an equitable and consistent manner.
Recognizing the Need for Accommodation
- Recognizing a potential need for accommodation is generally initiated one of three ways:
- the employee approaches the manager/supervisor and requests an accommodation
- a bargaining agent representative requests an accommodation on behalf of an employee
- the manager/supervisor recognizes and explores conditions that may require an accommodation. The manager/supervisor has an obligation to initiate a discussion about accommodation when they are aware that an employee may require an accommodation.
- Once a potential need for accommodation has been identified, the manager/supervisor must:
- ensure the Accommodation Form (CSC/SCC 1555) is completed by the employee and returned to the manager/supervisor for review in a timely manner. Note: The creation of an employee file is required (1075-14-1) with the support of the Regional Duty to Accommodate Advisor (or Labour Relations Advisor where applicable)
- ensure they have the information needed to support the request. For example, employees must provide documentation from their treating practitioner outlining their functional limitations/restrictions for a disability accommodation request. Moreover, for a family status accommodation request, the employee must provide information on the family situation and steps they have taken, and will take, to resolve the situation
- remind the employee that bargaining agent representation is available and encourage the employee to contact the bargaining agent representative.
Meeting with the Employee to Discuss the Request for Accommodation
- The manager/supervisor should arrange, in a timely manner, an accommodation meeting with the employee and ensure that the employee is informed of the purpose of the meeting, which is:
- to discuss the employee’s request for accommodation (i.e., review the information previously provided by the employee)
- to obtain clarification of the employee’s accommodation request (if required)
- to discuss potential next steps.
- This meeting is also a good opportunity to review the roles and responsibilities of each party in the accommodation process, as well as the confidentiality requirements pertaining to the employee’s situation.
- The manager/supervisor must obtain clarification and/or additional details if the information provided by the employee is insufficient or if there are additional questions about the request.
- The manager/supervisor should also request the employee’s input on any potential options to address the accommodation request.
- The manager/supervisor should schedule a timely follow-up meeting with the employee, if needed. It should be clearly communicated to the employee that all the information that they have provided (along with any further information received) will be considered.
- It is recommended that the manager/supervisor maintain case notes of all meetings held to discuss accommodation requests (e.g., date, time, location, attendees and items/issues/options discussed). These notes will be placed on the file.
Gathering and Reviewing Relevant Information Pertaining to Employee’s Accommodation Request and Assessing the Request
- The manager/supervisor will review all the information/documentation provided by the employee in a timely manner. The manager/supervisor must consider whether the request is based on a prohibited ground of discrimination (outlined in the Canadian Human Rights Act) that poses a limitation or restriction on an employee’s ability to work.
- If the request is based on a prohibited ground, then the process of generating accommodation options is required. In this case, the manager/supervisor must consider how best to accommodate the employee (i.e., what accommodation measures/options are feasible). Moreover, the manager/supervisor should consider whether the accommodation measures/ options brought forth by the employee and/or bargaining agent representative are feasible. If these options are not feasible, why not and what is feasible?
- If the request is not based on a prohibited ground, then it is not an accommodation request, and it must be dealt with through other mechanisms.
Making an Informed Decision Regarding the Accommodation Request
- The manager/supervisor must identify/review the various options to meet the employee’s request and make an informed decision in a timely manner.
Implementing and Communicating the Decision Regarding the Accommodation Request
- The manager/supervisor meets with the employee and shares the decision regarding the accommodation request.
- For approved accommodation requests, the manager/supervisor must:
- discuss the proposed accommodation option(s) with the employee
- share/discuss the formalized accommodation plan found on the Accommodation Form (CSC/SCC 1555) with the employee and ensure monitoring timeframes are clearly established
- inform the employee that the accommodation may be revisited at any time, including at the request of the employee or manager/supervisor. The employee is expected to advise the manager/supervisor if the accommodation is no longer required or if new circumstances will affect the accommodation
- reconfirm with the employee what information may need to be communicated to co-workers (if the co-workers’ duties are impacted by the accommodation) or bargaining agent representatives (if they are involved in the accommodation process). Ensure information regarding the employee’s accommodation is shared/disseminated on a need-to-know basis in accordance with the Privacy Act
- ensure all information regarding the accommodation is forwarded to the file holder for insertion into the employee file (1075-14-1), as per paragraph 22a.
- For denied accommodation requests:
- prior to communicating the decision, it is recommended that the manager/supervisor discuss the rationale for denying the request with the Regional Duty to Accommodate Advisor (or Labour Relations Advisor, where applicable)
- the manager/supervisor must discuss the rationale for denying the request with the employee and clearly outline the rationale in writing on the Accommodation Form (CSC/SCC 1555). All denied accommodation requests must be signed off by the Institutional Head/District Director/Director/equivalent.
Following Up and Maintaining Records of the Accommodation
- As per the accommodation plan, the manager/supervisor is to ensure that timeframes are adhered to by reviewing/assessing, in a timely manner, with the employee the suitability of the accommodation (frequency and timing will vary according to the unique circumstances of each case and must be included in the accommodation plan).
- If there is reason to believe the employee’s accommodation requirements have changed, if the accommodation is no longer required, or if the temporary accommodation has expired, the manager/supervisor must request updated information, when applicable, from the employee.
- Every stage of the process must be documented on the Accommodation Form (CSC/SCC 1555).
Medical Clarifications and Assessments
- CSC must ensure an employee’s right to privacy and confidentiality is respected while fulfilling its obligations regarding the duty to accommodate. Employees may be reluctant to share information or ask for accommodations for a number of reasons. However, CSC is entitled to receive sufficient information to provide an effective accommodation. Such information normally includes details on functional limitations/restrictions for disability-related accommodations.
- As much as possible, the employee’s treating practitioner should be the primary source of information. The treating practitioner is best positioned to conduct an assessment, make a referral or provide information on functional limitations/restrictions.
- In pursuing medical clarification or an assessment, managers/supervisors should explain to the employee the reason as to why the clarification or assessment is required.
- If additional information is required from the employee’s treating practitioner, a medical consent signed by the employee is only necessary when the employee requests that communication occur directly between the manager/supervisor and the treating practitioner.
Independent Medical Examination
- An independent medical examination is conducted by a third-party healthcare specialist who has not been previously involved in the employee’s care and where there is no previous doctor/ therapist-patient relationship. An independent medical examination provides an unbiased and comprehensive medical assessment pertaining to the employee’s physical, behavioural and/or psychological disability as a result of an injury or illness.
- Independent medical examinations are generally pursued as a final case management option in specific situations where a second opinion is required when serious and reasonable concerns exist about an employee’s fitness to carry out modified or permanent duties and/or when other sources for obtaining information/clarification on functional limitations have been exhausted.
- Independent medical examinations should only be used in exceptional and clear circumstances and the basis for requesting the examination must be fully disclosed to the employee. Independent medical examinations can only be conducted with the employee’s written consent. While CSC cannot force an employee to undergo an independent medical examination, an employee’s refusal to participate will hinder the accommodation process, and could potentially fulfill CSC’s duty to accommodate.
- Consult with the Regional Duty to Accommodate Advisor before proceeding with an independent medical examination.
- Health Canada may be used for fitness-to-work evaluations in order to determine the ability of an individual to carry out the duties of a position, with or without accommodation. There are obligations for both employers and employees in supporting a fitness-to-work evaluation and the subsequent accommodation of the employee. The employee’s explicit and written consent is a requirement for the evaluation.
- In situations which do not relate to a condition of employment, as much as possible, the employee's treating practitioner should be the primary source of information. In unusual circumstances (e.g., if the employee does not have a treating practitioner, or if the treating practitioner is unable to provide sufficient information), a referral to Health Canada may be considered.
Ergonomic Assessments of Workstations
- An ergonomic assessment (when requested as per paragraph 49) ensures that an employee’s workstation is ergonomically designed to minimize the risk of injury and maximize productivity.
- When an ergonomic assessment request is made by the employee, a formal assessment by a certified Ergonomist must occur in a timely manner. In this instance, the employee must submit documentation from their treating practitioner (e.g., medical doctor, physiotherapist, occupational therapist, chiropractor). The documentation should not outline a diagnosis, but simply indicate the need for an ergonomic assessment, and most importantly, any functional limitations/restrictions pertaining to the employee.
- Additionally, a timely ergonomic assessment must be completed by a certified Ergonomist when an employee provides a medical note recommending a specific piece of ergonomic equipment or furniture.
- Once the ergonomic assessment is complete, and if the employee requires a specific piece of equipment or furniture, the equipment or furniture is purchased by the manager/supervisor in a timely manner. This includes replacement furniture.
- Employees who require ergonomic equipment or furniture as a result of a medical requirement must have formalized accommodation plans completed using the Accommodation Form (CSC/SCC 1555).
- Should the employee deploy to another workplace or position within CSC or relocate to another public service organization, their equipment or furniture will accompany them, so long as the employee remains employed by the Government of Canada.
- These types of accommodation cases are considered permanent.
Personal Assistive Devices
- Personal assistive devices are pieces of equipment/aids that assist a person with a disability to perform various daily tasks. Common examples of personal assistive devices include wheelchairs, canes, scooters, hearing aids, oxygen tanks or communication boards. These pieces of equipment/aids belong to the individual person and are part of their personal space. Personal assistive devices are neither funded nor provided to employees by CSC. This type of equipment/aids are typically covered by the Public Service Health Care Plan (PSHCP), or federal or provincial assistance plans and grants.
Adaptive Computer Technology
- CSC’s Adaptive Computer Technology team supports employees with disabilities or injuries through the use of specialized computer hardware and software. Examples of items that fall under the scope of this group include specialized keyboards and mice, voice recognition software, text-to-speech software and other similar tools.
- The Adaptive Computer Technology Program Coordinators work closely with the Regional Duty to Accommodate Advisors and Shared Services Canada's Accessibility, Accommodations and Adaptive Computer Technology group (SSC AAACT)Footnote 1. The SSC AAACT group is composed of adaptive technology experts who provide recommendations, training and support to CSC employees. CSC maintains a Service Level Agreement with SSC AAACT to provide specialized support to its employees with disabilities. The collaboration of the two organizations ensures employees are provided the resources/tools required to perform the essential duties of their position.
- Employees who require adaptive technology as a result of a medical requirement must have formalized accommodation plans completed using the Accommodation Form (CSC/SCC 1555).
Accommodation and the Staffing Process
- When contacted to participate in a selection process, job applicants will be advised that CSC has a duty to accommodate and asked whether they require an accommodation measure to ensure their full participation in the selection process.
- The job applicant’s request for accommodation will be reviewed and additional information may be requested from the applicant to facilitate the accommodation.
- During the selection process, a person’s qualifications must be assessed after the person’s accommodation requirements have been met. Types of accommodation during the selection process may include, but are not limited to:
- providing information in multiple formats (e.g., Braille documents or in large print) for candidates who are blind or visually impaired
- ensuring that applicants who are deaf or hearing impaired can make inquiries via a TTY number or fax
- allowing extra time, where appropriate, for tests or exams
- ensuring that the interview site is physically accessible.
- If, at any point in the selection process, a request for accommodation based on a prohibited ground of discrimination is received that may eliminate the trainee or applicant from the selection process, consultation must occur with the Manager, Duty to Accommodate Program.
Funding for Accommodations
- Managers/supervisors are financially responsible for the various requirements associated with an employee’s accommodation. This may entail purchasing specific furniture, equipment or assistive devices to meet the needs of the individual. As such, managers/supervisors must ensure that adequate funding is available via their budget to meet the needs of their employees and potential job applicants. If there is a cost associated with an accommodation requirement, it is the manager’s/supervisor’s responsibility to pay for the accommodation from their budget.
- There may be instances where the cost associated with an accommodation requirement results in a significant expenditure. For this reason, CSC established the Central Accommodation Fund to assist managers/supervisors with the cost of individual accommodation requirements that are in excess of $500, but do not exceed $10,000.
- In the event the cost associated with the accommodation requirement is in excess of $500, the manager/supervisor can seek reimbursement from the Central Accommodation Fund. It is important to note that the Central Accommodation Fund does not reimburse the manager/ supervisor fully and completely for all accommodation requirements. The manager/supervisor is responsible for paying the first $500 of the accommodation requirement and any amount in excess of $10,000. For example, if the cost of the accommodation is $1,000, the reimbursement would be $500. There is no guarantee that a reimbursement request from the Central Accommodation Fund will be approved as funds are limited. The Central Accommodation Fund does not pay for infrastructure amendments. Additionally, the Central Accommodation Fund does not reimburse managers/supervisors for ergonomic assessments.
- The following process must be followed when requesting reimbursement from the Central Accommodation Fund:
- complete the Central Accommodation Fund Reimbursement Request (CSC/SCC 1546)
- attach any invoices associated with the accommodation requirement to the above completed form
- attach a copy of the ergonomic assessment
- attach a journal voucher
- forward the full package to email@example.com.
Privacy and Confidentiality
- CSC is subject to the Privacy Act. All individuals involved in the accommodation process will comply with the requirements of the Privacy Act and the Access to Information Act to protect personal information.
- All records associated with accommodation requests will be maintained in a secure location as per Commissioner’s Directive (CD) 228 – Information Management and will only be shared with persons who need the information.
- These guidelines and related procedures will be reviewed as required, and adjustments will be made as necessary to ensure that they continue to meet the needs of all employees and CSC.
Human Resource Management
Original signed by:
Cross-references and Definitions
CD 228 – Information Management
Canadian Human Rights Act
Employment Equity Act
Federal Public Sector Labour Relations Act
Federal Public Sector Labour Relations Regulations
Occupational Health Evaluation Standard
Public Service Commission Guide for Assessing Persons with Disabilities
Public Service Employment Act
Public Service Employment Regulations
Treasury Board Duty to Accommodate: A General Process for Managers
Treasury Board Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service
Bona fide occupational requirement: as defined by the Supreme Court of Canada, a requirement that:
- the employer has adopted for a purpose or goal that is rationally connected to the function of the position
- the employer has adopted in good faith, in the belief that they are necessary to fulfill the purpose or goal
- is reasonably necessary to accomplish the purpose or goal in the sense that the employer cannot accommodate persons with the characteristics of a particular group without incurring undue hardship.
Discrimination: an action or decision that treats an individual or group negatively or adversely for reasons such as their race, age or disability, or one of the other prohibited grounds of discrimination as defined in the Canadian Human Rights Act.
Functional limitations: as defined by the Public Service Commission, functional limitations result from disabilities and are restrictions in an individual’s functioning that hinder the ability to perform tasks and activities.
Annex B Limits to the Duty to Accommodate
The duty to accommodate has limits. Below is a non-exhaustive list of some practical examples of the limits to the employer’s duty to accommodate:
- Accommodate where undue hardship to the employer will result;
- Create an unnecessary job;
- Hire a candidate who, after being accommodated during the selection process, does not meet the essential qualifications required for the position;
- Retain an employee who is unable to meet their employment responsibilities despite accommodations;
- Accommodate an employee’s persistent absences if the absences are unrelated to a prohibited ground.
Annex C Diagram – Workplace Accommodation Process in CSC
Workplace Accommodation Process in CSC
The following diagram depicts the workplace accommodation process which includes recognizing the need for accommodation, meeting the employee to discuss the request for accommodation, gathering/reviewing relevant information and assessing the accommodation request, making an informed decision regarding the accommodation request, and implementing and communicating the decision regarding the accommodation request.
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