While you’re here, you may wish to attend one of our upcoming workshops:
Basic Workplace Investigation Techniques
While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
Interviewing witnesses can be the toughest part of an investigation, and sometimes our whole case hangs on the information that we may obtain from them. In this workshop, we help to shed light on the challenges we face when interviewing witnesses and provide strategies for dealing with them.
This posting builds upon an earlier one entitled “#2 Mental health or physical disabilities that deal with the duty to accommodate”. As indicated in that post, the duty to accommodate is always a tricky exercise and one that should be treated with the utmost circumspection.
The Accommodation Process
The Ontario Human Rights Code lists a number of personal characteristics protected from discrimination: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. These personal characteristics are often referred to as “protected grounds”. An employer is prohibited from discriminating against an employee on the basis of any protected ground.
Discrimination can be direct or indirect. An example of direct discrimination would be where an employer refuses to hire an employee because of his race. An example of indirect discrimination would be where an employer has a standard holiday schedule that respects traditional Christian religious holidays but which makes no allowance for the holidays of other religions or creeds. In the latter example, the employer’s holiday schedule, although framed as a neutral rule that applies to all employees, would adversely impact (i.e. discriminate against) employees of other religions/creeds who wish to observe holidays that don’t coincide with the employer’s holiday schedule.
Step 1 – Request for Accommodation
The accommodation process begins when an employee raises a workplace issue that deals with a protected ground. The employee is not required to make a “formal” request for accommodation, nor does the employee need to specifically identify the protected ground that is engaged in their request for accommodation. There are no magic words that need to be used by the employee. So long as the employer understands that there is a workplace issue that involves a protected ground, the duty to accommodate will be engaged.
As indicated in my prior post, an employer is obliged to take any request for accommodation in good faith. The employer is entitled to request as much information as it requires to determine whether an accommodation is required and the nature of the accommodation, if any. The employer is not, however, entitled to question the legitimacy of the request for accommodation. When an employee requests accommodation, the employer’s first thought should always be: “The employee made the request in good faith and believes she needs the accommodation requested.” This thought should guide the employer throughout the process.
Step 2 – Obtaining Necessary Information
Once an employee has made a request for accommodation, an employer is entitled to request any information necessary to (1) confirm the need for accommodation and, (2) determine what the best form of accommodation might be.
The type of information requested, as well as the level of detail necessary to substantiate the need for accommodation, will vary depending on the nature of the accommodation requested. So, for instance, an employer may be prepared to accept an employee’s request for a day off to observe a recognized religious holiday without further information. That same employer may be justified in requesting additional information where a similar request from another employee involves the holiday of a little-known and uncommon religion/creed.
Requests for information should be limited to what is legitimately required for the employer to determine that the request for accommodation can be supported by the facts. This is not intended to be an invitation to dig into the employee’s private life. Once an employer has obtained the information necessary to support the need for accommodation, the employer must then turn its mind to the form the accommodation will take.
On the second part of the inquiry, an employer is entitled to request any and all information necessary to understand:
- what the employee can do without accommodation,
- what the employee can do with accommodation,
- what the employee cannot do at all, and
- what steps, if any, can or has the employee taken to address the circumstances that have led to the request for accommodation.
It should be noted that part (d) will not always be relevant. For example, where an employee is requesting a day off to observe a religious holiday, there is likely nothing the employee can do on her own without the employer cooperating to address her need. However, in the case of an employee requesting a long-term flexible work schedule to fulfill childcare responsibilities, an employer would be entitled to request details of the efforts the employee has made before requesting an accommodation to address his childcare needs.
If the employee provides information that is unclear, ambiguous, or contradictory at any point in this step of the accommodation process, the employer is entitled to request further information to clarify or resolve any contradiction.
Step 3 – Crafting the Accommodation
Once an employer has confirmed that a request for accommodation is supported and understands the accommodation needs of the employee, the employer must then turn to crafting the appropriate accommodation. Although an employee may make suggestions on what he feels is the best accommodation, at the end of the day the employer is entitled to select and implement the accommodation it prefers. Ultimately, so long as accommodation retained by the employer meets the employee’s needs, the employer will have met its obligations under the Human Rights Code.
Using once more the example of an employee requesting time off to observe a religious holiday (you would think I couldn’t come up with any other examples!), the employee may request the day off. Upon inquiry, the employer determines that observance of the holiday only commences in the afternoon. In such circumstances, the employer would be entitled to require the employee to attend work in the morning and give the employee the afternoon off. Alternatively, the employer may be prepared to give the employee the entire day off, but could require the employee to make up the lost time in other ways. Or, alternatively, if the employee would prefer not to make up the time, the employer may require the employee to log the time off as vacation.
Where an accommodation will be implemented for an extended or indefinite period, the employer should put in place a process whereby it will review at regular intervals whether the employee continues to require accommodation and whether the form of accommodation originally implemented continues to be appropriate in the circumstances. This review process should be discussed with the employee at the time the original accommodation is implemented so that he is aware of and engaged in the process throughout.
Related blogs in this series:
- # 5 Forgetting that common law principles also apply
- #3 Contracts and Employment Agreements
- #2 Mental health or physical disabilities that deal with the duty to accommodate
- #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice (Part 3)
- #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice (Part 2)
- #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice (Part 1)
- Where HR Professionals Get It Wrong: Employment Counsels’ Collective Musings
About the Author: Toronto Employment Lawyer Adrian Ishak’s practice focuses on all aspects of employment law including employee relations, terminations, wrongful dismissals, employment contracts, and employment policies. He provides strategic counselling on a number of human resources, privacy and human rights issues. With a joint Ontario and Québec call and with experience in both jurisdictions, Adrian guides his clients through employment standards matters, pay and employment equity, and human rights obligations in Canadian common law and Québec’s civil law jurisdiction. Adrian represents clients in both English and French.