Accommodation Is Not a Favour

The duty to accommodate is not a favour and it is not something you have to bargain into the collective agreement. In Ontario it comes from the Human Rights Code. When a workplace rule, a job requirement, or a schedule collides with a Code ground — most often disability, but also family status, creed, sex, gender identity, and others — the employer must accommodate to the point of undue hardship. The short version is what duty to accommodate is.

That last phrase is where grievances are won or lost. Undue hardship is not inconvenience. It is not “the supervisor doesn’t like it,” “other employees will complain,” or “we’ve never done it that way.” The Code names only three factors: cost, outside sources of funding, and health and safety. Cost has to be significant enough to affect the nature of the operation, not just an unwelcome line on a budget. Health and safety has to be a real, assessed risk after accommodation — not a slogan.

Meiorin and Hydro-Québec

The Supreme Court set the modern framework in Meiorin and clarified it in Hydro-Québec. The goal is straightforward: a person who can work should not be pushed out because the job was designed for someone else. The employer does not have to create a make-work position, or strip a job of its essential duties. It does have to arrange hours, duties, equipment, and, where needed, a vacant comparable job so the worker can meet the basic obligations of employment, if that can be done without undue hardship. “Impossible” is not the test. Undue hardship is.

Two duties, not one

The procedural duty is the process. Ask. Get relevant information — usually restrictions and limitations, not a fishing trip for a diagnosis. Consider options. Talk to the worker. In a unionized workplace, talk to the union. Write down what was considered and why it was refused. In Ontario, a failure of process can breach the Code even if, in the end, no accommodation was possible.

The substantive duty is the thing actually provided. A meeting is not an accommodation. A form letter is not an accommodation. A modified assignment that matches the medical restrictions is.

The union has a duty too

In Central Okanagan School District No. 23 v. Renaud, the Supreme Court held that a union can be liable if it blocks a reasonable accommodation or clings to a collective-agreement term that has a discriminatory effect. Seniority is not nothing. It is also not a veto. The first search is still the worker’s own job, modified. Moving someone else is a last resort.

Points that come up on the floor

• The Employment Standards Act does not create this duty. The Code does. Arbitrators apply the Code.
• A WSIB return-to-work plan does not exhaust the Code duty. They run on different tracks, and the Code is often broader.
• “We don’t create jobs” is a starting position, not the end of the analysis.
• “It’s not in the collective agreement” is not a defence.

For stewards, the work is the same every time: restrictions in writing, options considered, reasons for refusal, and whether the employer demanded a diagnosis when restrictions would have done. Accommodation is won in the paperwork and the meeting, not in a slogan.