Reasonable accommodation: Role of the employer

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Remark



IN OUR past publications, we have discussed reasonable accommodation and the accommodation request process in the workplace. The question you may be thinking about is, “What happens next?”

If an employee has made a verbal request for reasonable accommodation, it is best for the employer to draft a letter, memorandum or email confirming the request. It may also be advantageous for the employee to submit the request in writing or complete a required form and submit it to Human Resources.

It is pragmatic to have a written record of this information in the event of a dispute as to whether or when the request was made. If the grievance escalates to litigation in court or tribunal, these documents may be entered into evidence during the legal proceedings.

The application is the first step in allowing the employer and employee to engage in an open discussion regarding the employee’s disability and to determine how the disability has or will affect their day-to-day duties.

The employer may then require the employee to provide a medical certificate from a board-approved medical practitioner outlining and explaining the type and nature of the disability, indicating any recommendations deemed appropriate to assist the employee in discharging of his professional responsibilities.

After that, the employer can better understand the needs of the employee. Keep in mind that while the employee may be entitled to reasonable accommodation, what they are granted is not necessarily their preferred means. The employer is not required to provide the employee with their specific request, but must ensure that an effective accommodation is provided. The employer chooses the means of adjustment to be implemented.

However, there are limits to an employer’s duty to accommodate an employee with a disability. Under the Equal Opportunity Act, the employer cannot be required to provide accommodation if it imposes an undue financial hardship on the organisation. Undue financial hardship refers to any “significant difficulty or expense” when considered together with several factors.

These include the nature of the benefit or harm likely to result or be suffered by any person concerned; the effect of a person’s disability; and the financial situation and the estimated amount of expenses to be incurred by the person claiming unjustifiable hardship. Other factors include the size, resources, nature and structure of the employer’s business.

Undue hardship is case-by-case. Predominantly, a larger organization with more substantial resources should make constraining accommodations a greater effort or expense than a smaller employer with fewer or limited resources.

If an employer is faced with a request that places an undue hardship on the organization, they should attempt to identify and provide alternative means of accommodation that will not pose such a hardship. Another consideration, if there is an undue hardship, is the ability of the person with a disability to fund some of the expenses and disbursements for the provision of the accommodation.

If you believe you have been unfairly denied a reasonable accommodation in the workplace, whether because your employer did not recognize your request, your employer offered you an accommodation that was ineffective, or your employer claimed that no accommodation was available without undue hardship, you can file a complaint with the commission by visiting our website at www.equalopportunity.gov.tt.

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