Smartshops - November 26, 2002

Questions & Answers

Duty to Accommodate

Policy

Q-1: Why is there a new Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service?

A-1: There are basically two reasons:

1. To bring the Policy into line with current jurisprudence and recent amendments to the Canadian Human Rights Act.
   
   
2. To foster a culture of "inclusion by design" within the Federal Public Service by taking into account the needs of persons with disabilities at the outset when designing new programs, technological applications or physical environments.

Q-2: When planning for changes to a policy or for a redesign of systems, procedures, physical facilities, etc., how does a department ensure "inclusion by design"?

A-2: Whenever possible, a department should plan the design or redesign of a system or a procedure or a physical facilities with as many types of people as possible in mind. This could avoid having the trouble and/or expense of rectifying systems later. Departments may wish to consult with experts and with persons with disabilities either through the department's committee for persons with disabilities or by contacting an appropriate association in the community.

Applicability of the Policy

Q-1: Does the Policy on the Duty to Accommodate Persons with Disabilities apply to my department?

A-1: The Policy applies to all departments and agencies and other portions of the Public Service listed in Part 1 of Schedule 1 of the Public Service Staff Relations Act for whom the Treasury Board is the employer.

Q-2: My department does not have the Treasury Board as an employer but we do staffing under the PSEA? Does the Policy on the Duty to Accommodate Persons with Disabilities apply to our department?

A-2: All departments and agencies and other portions of the Public Service for which the Public Service Commission has exclusive authority to appoint persons must provide accommodation during staffing processes.

Consultations on the Policy

Q-1: Who was consulted when the Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service was developed?

A-1: The development of the new Policy involved broad consultations with stakeholders including internal and external organizations and committees representing persons with disabilities, unions, departments and the CHRC.

Merit principle

Q-1: In what ways does accommodation of persons with disabilities serve the merit principle?

A-1: Underlying merit are three process values, one of which is ‘equity'. Equity is defined as "equal access to employment opportunities; practices are barrier-free and inclusive." In order to create the level playing field required to meet the definition of ‘equity', departments must accommodate persons with disabilities so that they are able to demonstrate, on the basis of a fair assessment of their skills, that they are capable of performing a set of duties. Only when proper accommodation is given to those who need it will we be able to demonstrate that merit has been observed. Failure to do so would certainly leave doubt in the minds of third party reviewers as to the fairness of the merit assessments.

Accommodation should be designed so that persons with disabilities are neither at a disadvantage nor are advantaged relative to other candidates.

Accommodation

Q-1: Does accommodation always have to do with persons with disabilities?

A-1: No. In fact, managers accommodate employees on a regular basis for a variety of reasons be they early child care responsibilities, religious needs, elder care responsibilities, personal health reasons, personal preferences, etc. The notion of inclusiveness as mentioned in the Policy preamble is not restricted to persons with disabilities. The idea is to create a barrier-free workforce environment where all employees feel included and valued.

Q-2: Do persons with disabilities always know what accommodations might be appropriate in their case?

A-2: No, some individuals may not know what accommodation would be appropriate as they have never had to obtain accommodation before (a new medical issue, or a progressive degenerative medical issue). They will require the assistance of professionals who can assess their medical condition (if not already done so) and also help from PPC staff to assess the appropriate accommodation based on the requirements of the selection process or of the job.

Requesting accommodation

Q-1: Must a person who needs accommodation put that request in writing?

A-1: No, a request for accommodation need not be in writing, but should be communicated as clearly and specifically as possible.

Q-2: What should the person receiving a request for accommodation do?

A-2: The person to whom the request has been directed should do the following.

Determine the type of accommodation required, based on information provided by the candidate or employee.

If the candidate or employee does not know what type of accommodation is required, consult experts in the field to determine the appropriate accommodation. This could include the person's own physician, psychologist or centres of expertise within the Public Service Commission or the accommodating department.

Provide the accommodation based on the request of the person being accommodated, or, if necessary, on the advice of experts.

Types of accommodation

Q-1: What are the common types of accommodation required for persons with disabilities?

A-1: The most common are individual testing, additional time, extra breaks, multiple formats and adaptive technology/aids.

Undue Hardship

Q-1: When trying to establish if the department will be subject to "undue hardship" are health, safety and costs the only three factors that must be taken into account?

A-1: Although, health, safety and costs are the main factors, courts have also considered relevant factors such as disruption of collective agreements, impact on the other employees, interchangeability of workforce and facilities, size and financial resources of the employer and availability of other positions.

Self-Id

Q-1: Must a person self-identify in order to receive accommodation?

A-1: A person does not have to self-identify as a person with a disability in order to be accommodated or to have accommodation offered to him or her. The self-identification process is voluntary and the information obtained from it is confidential. No one can be forced to self-identify to receive accommodation or after he or she has been accommodated.

Who pays

Q-1: Who pays for the accommodation?

A-1: Departments provide and pay for technical aids, equipment and services for employees with disabilities as well as repairs to such aids and equipment.

Q-2: Are hiring managers expected to pay for accommodation from their own budgets?

A-2: The answer to this question will vary from one department to the other. Some departments have established a central pool of funds available to all managers. In other departments, managers are expected to pay for accommodation directly from their budgets. Each departments can decide how it will approach this issue. As there are many ways of addressing the issue of funding, departments will deal with the issue as they sit fit.

Departments and agencies are expected to integrate into their budgets and financial planning exercises the resources necessary to accommodate their employees. When considering cost, it should be kept in mind that in many cases the cost will be amortized over the employee's entire career. Also, there are many payment options available, include leasing, for any necessary equipment.

Selection processes

Q-1: Are departments required to accommodate individuals who apply on ‘open competitions'?

A-1: Yes. The Policy on the Duty to Accommodate Persons with Disabilities applies to staffing processes. In the definitions section of the Policy, ‘staffing processes' include "open, closed or without competition staffing actions that result in a permanent or temporary appointment or deployment. Staffing and selection processes encompass all related activities such as establishing qualifications, advertising, assessment, giving notice that an appointment or deployment has been made, recourse and disclosure, as well as any related communications with candidates." Moreover, the Policy defines candidates as "applicants from outside the federal Public Service, as well as existing employees who are participating in a staffing process."

Q-2: At what time in the selection process is it appropriate to ask candidates if they need accommodation?

A-2: An inquiry can be done at different times during the selection process. If advertising a job opening, the poster could include a note to that effect, such as "Candidates needing accommodation during the selection process are encouraged to communicate their needs to the responsible human resources advisor or manager." The inquiry should be made again at the time of appointment or at the beginning of any other staffing process.

Q-3: When accommodating a person with disabilities in a selection process, can qualifications be altered as a way of accommodating the candidate?

A-3: The ‘nature' or ‘level' of qualifications must not be altered by accommodations. Candidates are not exempted from meeting bona fide occupational qualifications.

Information

Q-1: Can a manager or human resource advisor obtain medical records to establish the accommodation required?

A-1: Individuals requesting accommodation are not obliged to divulge their disability. In order to establish the accommodation required in cases where the requestor does not know what is the appropriate accommodation, information can be shared with PPC representatives or other experts. They in turn will inform the manager/human resources advisor what the appropriate accommodation is for the requestor. Should the requestor share information of a medical nature, any medical records provided should be kept strictly confidential and separate from personnel files.

The manager/human resource advisor is not entitled to confidential medical information. Any information given need only describe the functional limitation that the employee has and how best to accommodate then. Medical information should only be provided to a person in the department who is authorized to retain confidential medical information. This information should not go on the person's file.

Moving to another department/agency

Q-1: When an employee moves to another department/agency, are they allowed to bring technical aids with them?

A-1: Departments must allow employees with disabilities to retain technical aids, equipment and support materials should they move to another position within the federal Public Service and accommodation is still required.

Recourse

Q-1: What happens when the person requesting accommodation and the individual who should be providing it don't agree?

A-1: Departments and agencies should develop their own internal procedures for dealing with accommodation requests, including mechanisms for resolving situations where accommodation is denied. All candidates and employees should be advised of such procedures.

Q-2: On a closed competition, can a candidate appeal the appointments (made or proposed) alleging that proper accommodation was not provided and therefore merit was not upheld?

A-2: Yes. The jurisdiction of Appeal Boards includes issues of discrimination and accommodation to the extent that merit is affected in the selection process or if subsections 12(3) or (4) apply. They cannot review qualifications set by Deputy Heads. In this and all other situations complaints must be dealt with by CHRC.

Administrative issues

Q-1: Can a department charge a lower fee for parking for employees with a disability who are unable to use public transit?

A-1: Departments should determine whether it is appropriate to charge parking fees to employees with a disability who are unable to use public transit, and, if so, what those fees should be.

Getting help

Q-1: Where can I go for help when a candidate needs accommodation for an in-house test?

A-1: Specialized advice on accommodation in the use of assessment instruments is one of the services provided by the Personnel Psychology Centre of the Public Service Commission.

Q-2: Are there any tools/training available for managers/human resources advisors to help then with the assessment of persons with disabilities?

A-2: The Personnel Psychology Centre of the PSC has develop a new version of the Guidelines for Assessing Persons with Disabilities. The Guidelines are available on the PSC website.