By: Shirley Shi
In Ontario, the Ontario Human Rights Code (the “Code”) ensures workers have the right to be treated equally and not be discriminated at work.
Employment in this context includes employees, independent contractors, and volunteers.2 During employment, people with disabilities are entitled to the same opportunities and benefits as everyone else.
Employers’ duty to accommodate
Under section 5 of the Code, employers have a duty to protect workers with disabilities to the point of undue hardship. Section 5 is not limited to traditional employment relationships. Under the Code, the term “employment” is interpreted broadly and includes independent contractors, even though other legislations distinguish between employees and independent contractors. Additionally, section 3 of the Code covers the contracting phase of independent contractors by providing that “every person having legal capacity has a right to contract on equal terms without discrimination because of … disability.” To summarize, independent contractors in Ontario who have disabilities are entitled to ask their “employers” to modify the work arrangement so that the independent contractors can carry out work fairly, without barrier, and without discrimination.
The meaning of undue hardship
Naturally, asking an employer to change their business practice involves some degree of hardship, but hardship itself is not enough to excuse them from refusing to accommodate. Under section 17(2) of the Code, only undue hardship can excuse an employer from accommodating an independent contractor. In deciding whether an arrangement constitutes undue hardship, the Code specifies the following considerations: the cost, outside sources of funding, if any, and health and safety requirements. The Ontario Human Rights Commission helpfully points out that some common reasons, such as business convenience and employee morale, do not constitute undue hardship.
Accommodations vary from case to case and employers must create individualized accommodation plans to meet individual requirements. In general, employers should make their best effort to “remove the barrier” that discriminates against an individual.
Examples of accommodation can include:
– Allowing flexible work arrangements, such as working from home or adjusting work hours
– Making the physical modification to the working environment (wider doorways, handrails etc.)
– Additional training if you requested
– Provide alternative employment opportunities if your disability prevents you from previous job duties even with accommodation
– Allowing for additional breaks or time off for a medical appointment
It is important to note that the duty to accommodate is a shared responsibility between the employer, the client, the independent contractor and relevant government organizations. Employers and independent contractors should work together to make efforts to determine the appropriate accommodation to remove any barriers that would prevent an independent contractor with a disability from fully participating in the work or services being provided.
How to get accommodation from a company or organization
An independent contractor who needs disability-related accommodation must explain why they need certain kinds of accommodation in writing. It is also recommended to provide medical evidence to support your request. You do not have to let the company or organization know what your disability is, but you do have to inform them that:
- You have a disability
- Limitations and needs associated with the disability
- How the disability might impact your work
- What kinds of accommodation that you need
To continue working with the accommodation provider to manage your accommodation process, you will have to answer questions or provide information from healthcare professionals to help assess your conditions. The employer is not allowed to ask questions that might potentially reveal your diagnoses, such as your symptoms and treatment. The employer should respect your confidentiality. They are required to ask questions that minimize the intrusion of your privacy.
You may acquire assistance from legal clinics or contact an employment lawyer to get professional legal advice.
Community legal clinics provide free legal services to people with low incomes. There are clinics specialized in assisting people with disabilities: ARCH Disability Law Centre or the Human Rights Legal Support Centre.
 “The Ontario Human Rights Code: Discrimination based on disability and the duty to accommodate: information for employers”, online: Ontario Human Rights Commission < https://www.ohrc.on.ca/en/discrimination-based-disability-and-duty-accommodate-information-employers>.
 Human Rights Code, RSO 1990, c H19, c 7, s 5.
 “Policy on ableism and discrimination based on disability – 9.2.3 Health and safety”, online: Ontario Human Rights Commission<https://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability/9-undue-hardship#:~:text=If%20an%20accommodation%20is%20likely,with%20disabilities%2C%20as%20part%20of > [undue hardship].
 “Human Rights at Work 2008 – Third Edition, III Principles and concepts, 5 Who is protected at work, a) Broad protection for “employees”, online: Ontario Human Rights Commission <https://www.ohrc.on.ca/en/iii-principles-and-concepts/5-who-protected-work>.
 Human Rights Code, RSO 1990, c H19, c 7, s 3.
 Human Rights Code, RSO 1990, c H19, c 7, s 17(2).
 undue hardship, supra note 3.
 “Human Rights, Discrimination at work, Ask the company or organization for accommodation”, online: Steps to Justice<https://stepstojustice.ca/steps/human-rights/3-ask-company-or-organization-accommodation/>.