Workplace accommodations for doctors with disability and chronic illness

The Ontario Human Rights Commission acknowledges that defining disability is a complex, evolving matter. They state that a disability may have been present at birth, caused by an accident, or developed over time.

The Ontario Human Rights Code defines disability as:

1. Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, muteness or speech impediment, or physical reliance on a guide dog or other animal or a wheelchair or other remedial appliance or device
2. A condition of mental impairment or a developmental disability
3. A learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language
4. A mental disorder
5. An injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

Accommodations are made on a case-by-case basis and are not one-size-fits-all. They should be based on the individual’s particular needs and situations. The same disability can have different accommodations, depending on the individual.

Examples of accommodations for physicians

The following examples will show what may be possible within your hospital. They are not necessarily required by law. All of these examples are from real cases. They may provide a starting point for you in thinking about the types of accommodations that could be helpful to you, and for discussing with your workplace.

For physicians, accommodations may include work role modifications, schedule modifications, or assistive technologies, including:

• Work role modifications
  • Reduced inpatient bed coverage
  • Reduced coverage of acute care or procedural settings, with increased clinic time
  • Access to work in structured settings (clinic, operating room) versus acute or unstructured environments (emergency department, acute care)
  • Opportunities for job splitting
• Schedule modifications
  • Reduced or restricted overnight coverage
• Assistive technologies
  • Sign-language interpreters
  • Standing or hydraulic wheelchair for standing-based activities (i.e. operating room)
  • Text-to-speech technology to convert written text to audio
  • Dictation services/software
  • Screen magnification on hospital devices
  • Height adjustable tables with removable ergonomic chair
  • Noise-cancelling headphones for loud hospital environments
• System-based requirements
  • Robust backup coverage models to accommodate potential absences or work restrictions due to flares of illness, changes in disability, or other life circumstances
  • Access to clear accommodations guidelines at the hospital level
  • Physically accessible environments in clinical workspaces (for example, moving a physician to a clinic room closer to a waiting area for a mobility disability or further away for a sensory or hearing disability)

Employers and contracting parties have a duty to accommodate employees and independent contractors to the point of undue hardship. Undue hardship is a high legal threshold. It must be established on the basis of cost, available outside sources of funding, or health and safety requirements, and must be supported by direct objective evidence. 

It is up to the employer, contracting party, organization or facility to prove undue hardship, and to do so, they are only allowed to consider: 

• Cost of the accommodation 

• Outside sources of funding (e.g. grant applications or funding pools) 

• Health and safety requirements (including patient and staff safety impacts) 

The presence of some cost, administrative inconvenience, the practice’s funding model, or concerns from colleagues are generally not enough on their own to justify denying an accommodation request. Any claim that an accommodation would cause undue hardship must be supported by objective evidence and assessed on a case-by-case basis.   

The person or organization responsible for the relevant workplace rule, requirement or arrangement may have a duty to accommodate, which includes paying for the accommodation. It may not always be an organization, like a hospital; in some cases, a physician group may be responsible. Before making an accommodation request, it is important to determine who has the authority to address and approve the request.  

A note on independent contractors in hospitals 

Some hospital-based physicians have told us that they were asked to pay for their own workplace accommodations because they are independent contractors rather than employees. If the hospital is the organization responsible for your working relationship, it has a duty to accommodate you, even if you are an independent contractor. The Ontario Human Rights Code protects independent contractors from discrimination, including in contractual relationships.  

Yes. If it can be proven the accommodation would cause undue hardship due to cost, the person or organization responsible may not be required to cover the cost. The bar for undue hardship is relatively high. 

Hospitals have greater resources available to them as publicly funded institutions, but their resources are not unlimited. On the other hand, smaller community-based organizations may have more limited financial, operational and staffing resources, so they may reach the point of undue hardship sooner.  

For example, in a small practice, the cost of an accommodation could significantly affect the viability of the practice, or the accommodation may create health and safety concerns that cannot be reasonably addressed. In these circumstances, a finding of undue hardship may be justified. However, inconvenience, scheduling difficulty or disruption on their own do not constitute undue hardship.  

Added to the complexity of size is that community clinics are often simply cost-sharing arrangements between physicians otherwise operating independently. In such cases, the types of accommodation available may be relatively limited, but again this is not determinative, and each individual case must be considered in its context and the standard of undue hardship applied. 

Yes. Health and safety, including patient safety and safety of colleagues and staff, may be considered when assessing accommodation. Any risk must be assessed objectively based on the physician’s functional abilities, the nature of the work, the likelihood and seriousness of harm, and whether the risk can be reduced through accommodation. A mere diagnosis or theoretical possibility of harm is not sufficient on its own to deny an accommodation. 

Where a physician cannot safely perform particular duties, possible accommodations may include temporary reassignment, changes to duties, supervision, treatment-related restrictions or other measures appropriate to the circumstances. If the physician cannot perform the essential requirements safely, even with accommodation to the point of undue hardship, restrictions may be justified. 

For physicians with hospital privileges, where a physician's medical condition or requested accommodation creates, or is likely to create, a real risk of injury to any person in the hospital, the hospital may alter, restrict, suspend, or revoke the physician's privileges. However, the hospital must establish, based on objective evidence, that the risk is genuine and cannot be eliminated or reduced to an acceptable level through reasonable accommodation short of undue hardship. A mere assertion of a theoretical or speculative risk is insufficient. If your hospital privileges are threatened or may be affected, contact the CMPA promptly to determine whether advice or assistance is available. 

Yes. Physicians who are accommodated must still be capable of consistently performing or fulfilling the agreed-upon essential duties and requirements of their job to the established clinical standard. A person should not be found incapable unless their ability to perform those requirements has been assessed objectively and possible accommodations have been explored to the point of undue hardship. 

While the essential duties of a role are ultimately assessed based on the specific circumstances, physicians can generally expect the following individuals or groups to play a key role in identifying those duties objectively: 

• For hospital-based physicians, the department chief, or in some cases a physician practice group
• For community-based physicians practising within a group, the physician practice group
• For solo-practice community-based physicians, the physician themselves, potentially with assistance from external advisors 

Depending on the accommodation, physicians who work within a group practice may be seeking an accommodation from their colleagues. Certain accommodations are only possible if other members of the group agree to adjust their own work schedules (e.g. an accommodation of reduced after-hours coverage for one physician would only be possible if one or more other members of the group agreed to pick up their after-hours shift). Whether this is possible will be highly dependent on the nature of the shared practice, its need for a physician who can perform all requirements of the occupation, and the ability to accommodate to the point of undue hardship.

While all physicians have the right to be accommodated within the limits of the law, what this looks like in practice will differ depending on the nature of the accommodation requested and the practice context, which includes your organization’s size and your group practice arrangements.