Jan 16, 2015

Contractors and the Duty to Accommodate

Does an Employer have a Duty to Accommodate a Disabled Independent Contractor or a Disabled Dependent Contractor?

I recently fielded an interesting question. A human resources consultant was reviewing an employee manual for a client and asked whether the accommodation policy applied to a number of self-employed sales representatives who sold the employer’s services. The answer, of course, was: “It depends”. Here’s why:

Section 5 of the Ontario Human Rights Code (”Code”) states that every person has a right to equal treatment with respect to employment without discrimination because of disability. The needs of such a disabled person must be accommodated unless it results in undue hardship.

Section 5 of the Code is not limited to traditional employment relationships. In this regard, the Board of Inquiry in Payne v. Otsuka Pharmaceuticals Co Ltd. 2001 CanLII 26231 (ON HRT)stated: “Section 5(1) does not state that “no employer shall deny equal treatment to an employee”.  Indeed, there is no definition of “employment” in the Code.  Rather, section 5(1) involves discrimination “with respect to employment”.  “Equal treatment with respect to employment without discrimination” includes more than the traditional employer-employee relationship.

When interpreting the term “employment”, the Supreme Court of Canada in McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 recently concluded that: “relying on a formalistic approach to a ‘master and servant’ relationship, resurrects an unduly restrictive traditional test for employment” and concluded that “the test is who is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations?”

Lessons For Employers:

1. The duty to accommodate is not limited to the traditional employee/employer relationship.

2. An employer should carefully consider any accommodation request from a dependent contractor or an independent contractor.

3. An employer is not obliged to accommodate all independent contractors. It generally depends on the extent of the control the employer exercises over the contractor and how dependent the contractor is on the relationship.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]


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