Back to Sweaters, School, and the Office – Oh My!
For many, September marks the start of a new year. Yes, yes, we know January is the real first month of the year but September marks the end of summer holidays, kids going back to school, and many workforces who had modified summer schedules tend to resume their regular working hours in the Fall. While these used to be pretty standard and expected changes pre-pandemic, employees are now finding these organizational shifts to be more challenging than ever. In turn, employers are facing new accommodation issues and are trying to keep up. From employees wanting to work from home to family obligations to mental health and stress, here is everything you need to know about accommodating your employees.
Accommodation and Protected Grounds
So, what does accommodation mean anyways? Accommodation is giving equal access and treatment to all employees who are protected by the Ontario Human Rights Code (the Code). The protected grounds under the Code are race, place of origin, ethnic origin, colour, ancestry, disability, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing), and record of offences (employment specifically).
This means that an employer cannot discriminate and/or give differential treatment to an employee based on any of the above grounds. While an employer should never be treating employees differently in any situation and should always strive for equity in the workplace, differential treatment linked to these grounds is a huge no-no and can lead to a human rights complaint against your business.
Duty to Accommodate
Under the Code, employers have a legal obligation to accommodate their employees to the point of undue hardship. What undue hardship means and what accommodation looks like will be different depending on the specific employee and workplace. Generally, undue hardship is when the accommodation impacts the workplace or the employee cannot fulfill their duties despite your best efforts to accommodate them. Again, what “impacted” means and what an employee’s “fulfillment of duties” looks like, needs to be determined on a case-by-case basis.
The most common workplace accommodations we tend to see are modifications to an employee’s physical work environment (i.e. providing wheelchair accessibility); temporary work assignments or temporary accommodations (i.e. lighter duties or reduction in hours); leaves of absence (these must be taken with the understanding that the employee will be able to return to their role or an equivalent role upon their return); and lastly, term modifications (i.e. adjustments to employment conditions) like giving time and space for religious prayers or dress code amendments for religious reasons.
Balancing an Employee’s Right to Accommodation with an Employer’s Duty to Accommodate
An employee’s right to accommodation and an employer’s duty to accommodate go hand in hand. While the employer needs to make efforts to accommodate an employee, the employee also has a duty to participate in the process. If an employee expresses their needs for accommodation, you should work together with them to find the appropriate accommodation that works for both your business and the employee. Any accommodation given should be with the mindset of upholding dignity and inclusion in the workplace.
What about Accommodations for Reasons NOT Protected by the Code?
We’ve been seeing this question a lot from both employers and employees. As an employer, you only have a duty to accommodate up to the point of undue hardship based on the Code’s protected grounds. This means if an employee does not have a legitimate human rights basis for their accommodation, you do not need to accommodate them.
For example, if an employee has surgery and requires a gradual return to work program, the employer would be required to accommodate this medically documented request, unless it would be an undue hardship for the company (which would rarely be the case in an example like this). But, if an employee just doesn’t want to commute to work, this is not a reasonable reason to request an accommodation and you do not have an obligation to accommodate.
Mental health, addictions, and illnesses all fall under the disability-protected ground, so as an employer, you do have a duty to accommodate an employee requesting accommodations under this ground up to undue hardship.