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Advocacy Corner – The Duty to Accommodate, Returning to Work and your right to Medical Privacy.
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Each month, our Advocacy

Committee answers questions
about the AD 10 policies (aka,
your terms and conditions of
employment, SFU’s
Administrative Policies 10)

While today’s topics mostly fall

outside of the AD 10s, they are
no less your rights under the BC Human Rights Code. Human Rights law applies to employment
contracts, or collective agreements, even if it’s not mentioned within the agreement itself.

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For this reason, we have included reference links at the bottom of this article for further
reading.

If you have questions, we strongly encourage you to get in touch. The application of Human
Rights law is often in �ux, as new decisions at the Human Rights Tribunal can alter how the law is
applied.

Talking to APSA is always con�dential, and we do not share any of your information with SFU
without your permission.

Wha t i s t he D ut y t o Ac c om m oda t e ?

The duty to accommodate is an obligation under the Human Rights Code to not discriminate
regarding employment, based on personal characteristics.

This means, that sometimes it is necessary to treat someone differently in order to prevent or
reduce discrimination in the workplace.

For example, providing a special screen and software for an employee with a visual impairment
would be an accommodation of a disability, which ensures that that employee can participate
fully in the workplace.

The purpose of the duty to accommodate is to ensure employees who are able to work can do so.

In BC, employers have the duty to accommodate up to the point of undue hardship.

Wha t i s U ndue H a r dshi p?

There is a reasonable limit on how far an employer has to go to accommodate your needs. But
there also isn’t a “one-size-�ts-all” test of undue hardship either.

A small employer with only 10 employees and few resources will be held to a different standard
than a large institution with thousands of employees and resources.

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The employer also has to prove that accommodating you is beyond reasonable ability. If your
supervisor tells you that they cannot accommodate you, please contact APSA for our guidance.

I h ave a di sa bi l i t y a n d i t ’ s c a u si n g m e t o st r u g g l e a t wo r k . I wa n t t o r e qu e st a n
a c c o m m o da t i o n , bu t I’ m n o t su r e i f m y c o n di t i o n c o u n t s be c a u se n o o n e c a n t e l l I h ave a
d i s a b i l i t y.

Just because a disability is invisible doesn’t make it any less valid, nor does it preclude an
accommodation.

If you’re not sure please feel free to get in touch with APSA. We can discuss your questions and
concerns in complete con�dentiality.

In S F U ’ s G e ne r a l P ol i cy 4 0 , i t st a t e s “ 3 . 2 T he dut y t o a ccom m oda t e i s a r e sponsi bi l i t y

t h a t r e s t s j o i n t l y w i t h t h e e m p l oye e , t h e u n i o n o r e m p l oye e a s s o c i a t i o n , a n d t h e
U n i ve r s i t y.” W h a t d o e s t h i s m e a n ?

Human rights law is shaped by decisions made at the Human Rights Tribunal, BC Courts, and
even the Supreme Court of Canada.

Many tribunal panels, arbitrators, and judges have said that the duty to accommodate is a joint
process and that everyone has a responsibility.

While the employer has a duty to accommodate, the employee also has a duty to cooperate in
the process. This means updating the employer on recovery and prognosis, providing relevant
medical documentation, and cooperating in the search for suitable accommodation
arrangements.  

An accommodation can also sometimes mean meeting in the middle.

An employee association like APSA also has a responsibility in the duty to accommodate. It’s
important for APSA to be a part of the accommodation process so that association
representatives can play a faciliatory and advisory role. APSA also has an obligation to cooperate

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in the search for reasonable accommodation solutions, even if there are provisions in the terms
and conditions of employment (in this case, the AD 10 policies) which could affect an
accommodation.

I ’ ve b e e n o n s i c k l e a ve f o r a w h i l e n o w, a n d t h o u g h I ’ m n o t ye t 1 0 0 % b e t t e r, m y d o c t o r
t hi nk s I coul d com e ba ck t o wor k wi t h a n a ccom m oda t i on. H ow i s t hi s a r r a nge d?

The �rst step is to notify your supervisor in writing that you have a disability that requires
accommodation. This will prompt your supervisor to contact the Return to Work and Disability
of�ce in Human Resources and the process will go from there.

You can also contact APSA at any time, even before you write to your supervisor, for guidance,
support and advocacy through the accommodation process.

I w a n t t o r e q u e s t a n a c c o m m o d a t i o n , b u t I ’ m a l s o ve r y c o n c e r n e d a b o u t m y p r i v a c y.
H o w m u c h i n f o r m a t i o n do I r e a l l y h ave t o di sc l o se a bo u t m y c o n di t i o n i n o r de r t o be
accom m odat e d?

Much like accommodation and undue hardship, there is no one size �ts all answer, as the exact
level of detail will also depend on what sort of accommodation the employee is seeking.

That said, the employer does not have an unconditional right to full disclosure of an employee’s
medical situation. They can request, however, medical documentation that is relevant to the
restrictions or limitations of an employee’s job duties.

In general, the employer is entitled to know:

-    The nature of the illness, and how it manifests as a disability.
-    Whether the disability is permanent or temporary.
-    The restrictions or limitations that �ow from the disability.
-    Any treatments or medications which may impact the employee’s ability to perform the job.

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D o e s t h e D u t y t o A c c o m m o d a t e a p p l y t o o t h e r c h a r a c t e r i s t i c s p r o t e c t e d by t h e H u m a n
R i g h t s C o d e , l i k e r e l i g i o n , g e n d e r i d e n t i t y, o r f a m i l y s t a t u s ? O r i s a n a c c o m m o d a t i o n
o n l y f o r p hy s i c a l o r m e n t a l d i s a b i l i t i e s ?

Yes, it does! We’ll be covering Human Rights in the workplace in regards to other personal
characteristics in later Advocacy Corner Articles.

Resources:
BC Human Rights Tribunal – Human Rights & Du�es in Employment (h�p://www.bchrt.bc.ca/human-
rights-du�es/employment/index.htm)
BC Human Rights Code (h�p://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside
/00_96210_01)
SFU General Policy #18 - Human Rights (h�p://www.sfu.ca/policies/gaze�e/general/gp18.html)
SFU General Policy #40 – Disability Accommoda�on in the Workplace (h�p://www.sfu.ca/policies
/gaze�e/general/gp40.html)
SFU General Policy #40 - Procedures (h�p://www.sfu.ca/policies/gaze�e/general/gp401.html)
BC Civil Liber�es Associa�on – Privacy Handbook “Health Informa�on at Work” (h�ps://bccla.org
/privacy-handbook/main-menu/privacy5contents/privacy5-8.html)

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