VIH Info Droits

The obligation to accommodate stems from the right to equality and the provisions of the Québec Charter of Human Rights and Freedoms prohibiting discrimination. It consists of making exceptions to a rule that appears neutral (i.e. it applies equally to everyone), but that does not lead to the same consequences for everyone. 

Indeed, a rule that applies equally to everyone could prejudice a person and create a situation of inequality or even discrimination. A different treatment – a reasonable accommodation – is therefore necessary in such cases in order to achieve true equality between the persons for which the rule applies. 

In the workplace, the end goal of accommodation is to allow everyone an equal opportunity in work. It avoids situations where people able to work would be unjustly excluded, notably for health reasons or due to a disability. The notion of reasonable accommodation therefore forces employers to actively research solutions that would allow their employees to fully exercise their rights. 

These solutions will need to be adapted to the features of the person that is discriminated against in their workplace. The employer will have to reorganize certain ways of doing things in order to cater to the particular needs of their employee and to enable them to realise the tasks necessary in their position.

When they make a request, an accommodation could be made for an employee that faces a situation of inequality inhibiting them from realising the tasks necessary to their position. 

To ask for an accommodation in the workplace due to health conditions, the employee will have to mention to their employer their disability and explain the needs and limitations that arise from it. The employer may ask for a doctor’s note to include in the request.

The right to accommodation is however not absolute. Indeed, the accommodation requested must be reasonable (i.e. it should not impose excessive constraint on the employer – see 6.2 Undue Hardship). 

It is not necessary to disclose the exact nature of the disability or the health condition to their employer in order to receive accommodation. The employee may ask their doctor to justify the particular needs or limitations arising from the “chronic illness” without mentioning HIV. 

A person living with HIV who wishes to receive accommodation therefore does not have to disclose their seropositive status to their employer in order to obtain an accommodation. This is the case even if the employer had asked a question regarding this during the interview, in a form pre-hiring, in a medical examination pre-hiring or during the employment. Nothing inhibits however an employee from disclosing their HIV status to their employer should they wish to do so.

Measures taken to accommodate an employee will vary depending on the particular needs of the employee that requests it. It could also change as time progresses. Here are certain examples:

The layout of the employee’s workstation:

• Creation of a private area (taking medication, rest)
• Installation of a ramp or handrails
• Provide a specific help, equipment or device
• Provide a reserved parking

The modification of the work schedule:

• Flexible work schedule
• Allow more frequent breaks
• Allow absences for medical appointments
• Accept weekend work or work from home

The modification of the tasks of the position:

• Accept a part-time job
• Task or job sharing

These are only some examples of ways to provide accommodation to an employee that requests it. It is the employee’s responsibility to request an accommodation that takes into account their needs and to collaborate with their employer to find solutions. 

This collaboration is important. Even though the employer must ensure that there is equality between its employees, the employees must in turn cooperate with their employer in order to determine what kind of accommodation would allow them to be most productive at work. Accordingly, the employee can make suggestions to the employer with regards to their preferences, but they cannot expect the perfect solution. They must accept accommodations proposed that are reasonable and that adequately cater to their needs even if in extreme cases, this might involve modifications in tasks and/or pay reduction. For unionized people, the union will also participate actively to finding an accommodation that is satisfactory. 

The right of an employee to obtain reasonable accommodation in the workplace is not automatic and it is not absolute. The employer could have legitimate motivations to refuse to grant an accommodation. These could stem from the nature of the position held by the employee, or by the realities inherent to the company.

6.1 The Bona Fide occupational requirement
The bona fide occupational requirement (BFOR) is an exception based on the features of a position and the essential tasks linked to it. It enables employers to justify the norm, requirement or practice that could be considered discriminatory. The BFOR therefore aims to create a just balance between the protection of salaried employees against discrimination and the right of an employer to effectively manager their company. 

In Quebec, this exception is provided for by law. It is stated in the first part of article 20 of the Quebec Charter of Human Rights and Freedoms: “A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment […] is deemed non-discriminatory”.

For this exception, the employer must demonstrate:

• that it adopted the standard for a purpose rationally related to the performance of the work in question;
• that it adopted the particular standard with a sincere belief that it was necessary to achieve this legitimate work-related goal;
• that the standard is reasonably necessary to achieve this legitimate work purpose.

The final step takes into account the legal duty to accommodate. At this last stage, the employer must demonstrate that it is impossible for him to accommodate the employee without undue hardship.

6.2 Undue Hardship
Even if the employer must accommodate an employee who requests it, this obligation will end when the accommodation requested constitutes “undue hardship” for the employer. As the law does not provide a definition for this expression, undue hardship is evaluated on a case by case basis. 

The duty to accommodate necessarily implies that the employer will have to tolerate a certain level of constraint in order to attaint real equality in the workplace. To show that a constraint imposed on an employer represents “undue hardship”, the employer will have to show that the constraint is more than mere inconvenience. The constraint will have to be real and substantial. 

The conditions and realities specific to each company will be taken into consideration to determine the excessive nature of the constraint. These are examples of criteria to evaluate if a constraint is excessive and therefore represents undue hardship:

Les conditions et réalités propres à chaque entreprise seront prises en compte pour déterminer le caractère excessif d’une contrainte. Sont des exemples de critères d’évaluation de la contrainte excessive :

• The cost of the accommodation is too high for the company
• The negative effect on productivity, yield and workload
• Risks to the health or safety of the applicant or others
• The breach of the collective agreement

This list is however not exhaustive.

In cases of temporary or intermittent disability, the employer might be obliged to keep the employee in their position so long as a reasonable prospect of a return to work exists. Thereby, an occasional disability may not satisfy the definition of undue hardship.

The situation is however different in the case of a permanent disability. When health-related absences surpass a certain threshold and affect substantially the employee’s capacity to work, the employer could have the right to terminate the work contract. Indeed, in this case, the employee cannot reasonably fulfil the essential obligations associated to their position. 

Each situation must be evaluated on a case by case basis in order to determine if there exists a reasonable prospect of a return to work. If the answer is negative, then the employer is not obliged to accommodate the employee.

In a case where an employer refuses to accommodate an employee and that employee believes to be the victim of discrimination, certain recourses are available to require the employer to satisfy their obligation to accommodate and/or to compensate the employee in damages. For this matter, please refer to the information capsule “Discrimination and Harassment”. The relevant authorities will notably determine if the accommodation requested should have been granted or whether the burden was on the employer to show undue hardship. 

The Canadian jurisprudence has considerably defended the right to work for people with medical conditions while avoiding excessive changes in the practices of an employer. The duty to accommodate is today a well-established legal tool in Canada and this notion is inherent to the concept of equality.