This is the first instalment in our Top 10 Issues for Employers series. The first topic we address is accommodation in the workplace. What is duty to accommodate? What are some of the current issues and trends in this evolving area? And what are the implications for employers?
Employers have a duty to accommodate employees’ needs based on those grounds protected under federal and provincial human rights legislation. All employers are required under human rights legislation to make reasonable, good faith attempts to accommodate employees to the point of undue hardship.
Duty to Accommodate
An employer’s duty to accommodate is far-reaching and may take a variety of forms depending on the particular workplace and the specific needs of the employee being accommodated. Accommodation can range from structural changes to facilities or equipment, to the provision of additional support to an employee, to the altering of work schedules or rules, or to the granting of absences or rehabilitation programs. As a result, the costs of accommodation may vary widely. In each instance, however, the duty to accommodate includes the procedural duty to investigate and consider accommodation, as well as the substantive duty to see that reasonable accommodation does, in fact, occur.
The duty to accommodate is qualified: the employer is required to accommodate any employee only to the point of “undue hardship.” However, this threshold is quite high. Not every workplace disruption or interference will constitute undue hardship for an employer. The Supreme Court of Canada has ruled that while an employer is not required to accommodate to the point of impossibility, any inconvenience or disruption short of undue hardship will not relieve an employer of its obligation to accommodate.
CURRENT ISSUES AND TRENDS
“Family status” is a prohibited ground of discrimination under most provincial human rights legislation in Canada and is a rapidly evolving area of the law. Trends in case law indicate that employers can be found liable for discrimination if they fail to adequately address employees’ needs regarding family obligations, such as caring for children, a spouse, or parents. However, there are two competing views as to the extent a workplace standard must interfere with a family obligation to amount to discrimination:
- The first approach requires that a workplace standard must interfere with an employee’s ability to fulfill a substantial family obligation in a realistic way
- The second approach requires that a workplace standard must interfere with an employee’s ability to fulfill a substantial family obligation in a serious way
The law is still developing as to which test for prima facie discrimination on the basis of family status will be adopted by decision-makers. Regardless of the test ultimately applied, a key consideration will be whether an employee can demonstrate that they have a substantial family need that cannot be met without employer accommodation. As a result, any attempts by an employee to facilitate their own accommodation will always be a relevant consideration. Employers should recognize that the law in this area is unsettled and take meaningful steps to consider the reasonable requests of employees for accommodation in respect of family obligations. When faced with an employee alleging that work requirements are interfering with family obligations, an employer wishing to protect itself against discrimination claims should:
- Listen to the employee’s request or allegations
- Consider the employee’s efforts to address the alleged interference with family obligations
- Consider the impact and hardship on the business if the employee’s requests are granted
- Consider whether the employee’s requests are simply preferences or are actual needs
- Document all steps taken to address the employee’s requests or allegations
This is not to say that all such requests for accommodation must be granted. However, an employer who meaningfully considers an employee’s requests and who makes a bona fide attempt to determine and communicate to its employee why accommodation is or is not possible is more likely to establish that it has met its duty to accommodate.
Drug and Alcohol Testing
Another rapidly evolving area of the law is the limits on drug and alcohol testing in the workplace. Employers who implement lawful drug and alcohol policies should consider the interaction between drug and alcohol testing and employee human rights. Since drug or alcohol addiction is a disability, it is afforded protection under human rights legislation. As such, adverse treatment or termination of employees with a drug or alcohol addiction will attract human rights scrutiny. Employers who do test employees for drugs and alcohol must therefore ensure that they have programs or policies in place to discharge their duty to accommodate employees suffering from drug or alcohol addiction.
IMPLICATIONS FOR EMPLOYERS
An effort to accommodate the needs of employees up to the point of undue hardship is required by employers under human rights legislation. Although it is helpful to review current human rights decisions speaking to the employer’s duty to accommodate employees based on the protected grounds, there is no set formula for accommodation of employees, as each person has unique needs and abilities.
Prudent employers will typically benefit from having a clear accommodation policy and ensuring those responsible for its application comply with its terms. Employers are encouraged to focus their efforts on the careful design, implementation and communication of accommodation policies and practices in order to reduce the likelihood of human rights claims. Employers are also well advised to consider whether the implementation of a particular workplace standard or rule could have a disparate impact on a protected group under human rights legislation, such as workers with disabilities. If the workplace standard or rule suggests evidence of differential treatment based on a prohibited ground, employers are encouraged to consider other approaches or means that may be implemented to achieve their desired objective and that do not trigger human rights concerns.