In Knight v. Surrey Place Centre (2019) HRTO 482 [“Knight”], the Ontario Human Rights Tribunal (“the Tribunal”) examined an employer's human rights obligations and the complexities of delegating the duty to accommodate to third party insurers. The Tribunal's ruling clarified that while employers can outsource disability management to third parties, this does not absolve them of their obligations to accommodate disabled employees under the Ontario Human Rights Code (“the Code”). The Tribunal wrote:
“If the employer decides to outsource the management of the accommodation of a disabled employee to an agent, the actions or failures of the agent do not lessen or alter the employer's obligations” (para 163).
Under the Code, employers are required to make every reasonable effort to accommodate disabled employees, up to the point of undue hardship. Accommodation is the adjustment of an employer's policies, practices and workplace conditions to ensure disabled employees are able to have equal opportunities, access, and benefits in the workplace. In practical terms, it may look like an employer changing an employee's duties, workspace, or work hours to accommodate the employee's disability-related needs. Employers are required to work with employees to provide them with appropriate accommodation.
When describing the expectations placed on employers in the accommodation process, the Human Rights Commission set out the following guidelines:
- Accept the employee's request for accommodation in good faith, unless there are legitimate reasons for acting otherwise;
- Obtain expert opinion or advice where needed. This includes taking an active role in ensuring that alternative approaches and possible accommodation solutions are investigated and canvassed;
- Keep a record of the accommodation request and action taken;
- Maintain confidentiality; and
- Grant accommodation requests promptly, up to the point of undue hardship (Ontario Human Rights Commission Policy and Guidelines).
In the Knight case, the Tribunal held that the employer had failed to accommodate the employee's disability in how the insurer handled the accommodation process. ignored or downplayed the employee's medical evidence, failed to adjudicate the employee's request in a timely manner, and failed to communicate their findings to the employee properly. Notably, even though the employer had outsourced disability management to a third-party insurer, that did not lessen their obligations under the Code. The insurer was considered to be acting as the employer's legal agent in handling the accommodation process; so, the employer was held liable for the mishandling of that process.
The Tribunal ordered the employer to pay the employee $15,000.00 in human rights damages and required the employer to improve its contract with the insurer moving forward.
This is a stark reminder to employers of the potential legal consequences of mishandling an accommodation process – even if managed through a third party.
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