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Duty to accommodate

Duty to accommodate

[iStock.com / LeszekCzerwonka]

Last summer, Cynthia Bruce, an assistant professor of music therapy, health and wellness, embarked on what would be a major career move in the best of times and an ambitious one in these fraught pandemic times. She took up a new teaching and research posting at Concordia University, in Montreal, after working for several years at Acadia University, in Nova Scotia, including a stint as the president of the academic staff association there.

There was one more important wrinkle: Bruce is blind, which meant her partner had to accompany her to the final in-person job interview. Concordia, as it transpired, was entirely cooperative, not balking at the additional expense, and also offering, by way of alternative, to assign someone to meet and assist her when she landed in Montreal.

“They were very accommodating,” Bruce says, adding that she’s also remained for the time being in Nova Scotia, teaching — as is the case with almost all academic staff these days — virtually. “I was pleasantly surprised.”

While Bruce says she has encountered almost no push back from employers that have had to accommodate her visual impairment, there is no shortage of issues around accommodation in the workplace from post-secondary institutions across Canada. Even though “duty to accommodate” (DTA) is a well-enshrined principle of Canadian human rights law, frictions continue to surface, as academic staff grappling with issues such as disabilities, chronic conditions or time-consuming family obligations may be reluctant to seek accommodation for concerns over career implications and when they do, they may be met with administrations that are not always cooperative in providing support.

“In my experience, a lot hinges on finances,” says Victoria Wyatt, an associate professor of art history and visual studies at the University of Victoria and a member of the executive committee of the faculty association, with responsibility for the equity and disability portfolio. “There’s a resistance on the part of administrations to put funding into accommodation.”

Bruce adds that teaching and research institutions have tended to be far more focused on accommodation for students as opposed to academic staff. “We are the unexpected among the ranks of faculty,” she says. “They’re not ready for us.”

­­The duty to accommodate has been embedded in provincial human rights codes since the early 1990s. This provision, Michael Lynk, an associate professor of law at Western University, specializing in labour relations, human rights and disability issues, points out, has produced thousands of human rights tribunal rulings and arbitrators’ findings, with the result that the law is very well established.

In general, he explains, employers such as post-secondary institutions have an obligation to interpret the duty to accommodate broadly and liberally, while exceptions — notably claims of “undue hardship” — are to be read narrowly.

Accommodation applies in three broad categories: disabilities, both physical and psychological; family status, and religion. Age, Lynk adds, may also be included. In practice, this obligation requires employers to develop accommodation plans that could include accessibility equipment or retrofits, medical leaves, and adjusted workloads for individuals who have chronic conditions or onerous responsibilities caring for ill family members.

In the context of a teaching institution, accommodation can take the form of “re-bundling” teaching obligations, adding teaching assistants, or allowing tenure-track academic staff additional time to reach certain thresholds related to published journal articles, for example.

The flip side of the duty to accommodate is the duty to inquire, which is an obligation on institutions to ask academic staff if they require accommodation. The employer is within its rights to develop or negotiate an accommodation plan that is reasonable, but may fall short of what the individual has requested.

In some cases, employers can claim undue hardship due to “legal operational requirements,” such as safety standards that can’t be guaranteed. But, as Emma Phillips, a partner at Goldblatt Partners specializing in faculty association law, cautions, a core theme of DTA practice is that each case is different, and must be handled accordingly. “Flexibility is always part of accommodation,” she says.

Wyatt, at UVic, says that one of the concerns about DTA procedures is that some academic staff aren’t familiar with the law and may not be aware of their rights, meaning they may not be able to secure the accommodation they require. She points out that human resources managers may turn down a DTA request, citing cost or budget issues. “If you say no to something that is going to have a cost, you still have to support the member.”

She points to administrators’ reluctance to provide teaching assistants or a reduced teaching load, and adds that it is “absolutely routine” for academic staff to request scheduling or other changes because they’ve got administrative duties or are supervising graduate students.

Accommodation questions, moreover, have become much more immediate during the pandemic. The shift to virtual instruction created logistical disruptions as well as a long list of additional pressures related to workload, excessive screen time (a significant concern for individuals with ADHD, for example), work-life balance and, in the foreseeable future, return to work. “People are just beginning to turn their minds to this,” comments Lynk.

History professor Lynne Marks, president of the University of Victoria Faculty Association (UVicFA), says her members have negotiated two letters of agreement with the university since the pandemic began, both focused on the importance of accommodating family status issues such as caring for young children while teaching virtually and researching from a home office. In a UVicFA survey, over a quarter of respondents said they were considering taking medical leave because of pandemic-related stresses.

The pressures were greater early in the pandemic when schools and daycares were closed, and “a significant minority” of academic staff had to juggle family and professional responsibilities. Marks points out that women, single parents and members of equity-seeking groups have been disproportionately affected, but adds that the university has been willing to recognize the issues.    

Cynthia Bruce notes that the stresses associated with virtual instruction have been especially difficult for academic staff with disabilities. “As a disabled faculty member, it takes me a lot longer to do everything. It’s physically, emotionally and intellectually exhausting.”

Over the coming months, DTA practice will be put to yet another test as the prospect of a return to the classroom comes into sharper focus. While Lynk points out that there haven’t been many legal rulings on DTA during the pandemic, he and others expect the legal environment to evolve.

A few years ago, universities and colleges may have balked at requests by academic staff to deliver a course virtually. But the experience of the past months has completely altered ­that calculus, and the implications in the short term could be significant. Phillips says there could be more demands for accommodation.

For example, if a teacher with an underlying chronic condition does not feel comfortable going back into class when it’s not clear if every student has been vaccinated, they may have an option to continue working virtually. “If someone has a lot of doubts about the vaccine and doesn’t want to go back,” Lynk says, “the employer can’t force them to.”

Institutions, academic staff and their associations will almost certainly be confronted with other tricky issues around vaccination. If someone is teaching in a medical school, or a teaching hospital, for instance, it seems likely that the employer will expect them to be vaccinated in order to ensure patient safety.

As Lynk notes, “These are questions without definitive answers yet.”

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