A semblance of normalcy is finally returning to Canadian workplaces. With improved vaccination rates and easing of restrictions, cautioned optimism is giving way to strategic planning. For many organizations, important HR decisions must be made, including where and when employees will perform their work. Many of those decisions will have human rights implications, particularly for organizations seeking a return to “pre COVID-19” in-person operations.
All Canadian workplaces must comply with human rights laws
Provincial and federal legislation specifically sets out “prescribed grounds” of discrimination. Many of the prescribed grounds are obvious, such as race, sex, and age. Others are less obvious. For example, human rights legislation prohibits discrimination based on “family-status”, which includes being in “a parent and child relationship.” Meanwhile, the scope of what constitutes a “disability” under the Human Rights Code is ever evolving.
What are employers’ obligations?
Generally speaking, employers should not adopt a policy, or behave in a way, which negatively affects an employee based on a prescribed ground of discrimination. Where such a policy or practice exists, employers are expected to accommodate affected employees, up to the point of undue hardship. Accommodation can include changes to an employee’s work location, hours and/or duties, though it does not require an employer to create an entirely new job for the employee.
The accommodation requirement is both procedural and substantive, meaning that employers cannot simply claim that accommodation is impossible without having first tried, or even considered it, in good faith. Indeed, Ontario’s Human Rights Tribunal recently found that an employer was in violation of the Human Rights Code for just this reason when it failed to respond to an employee’s email about the impact of her schedule on her child-care needs. The employer was required, at minimum, to consider the request.
The legal threshold for denying accommodation is called “undue hardship”, and it is more than a business inconvenience. It is a high threshold that courts and tribunals will not accept lightly.
Any denial of an accommodation should be based upon careful consideration of the employee’s particular circumstances and the advice of experienced employment law counsel.
What to watch out for
Over the past 16 months, many employees have adopted work routines specifically curated to their child/parental care responsibilities or their own medical issues. Simply demanding that those employees return to the status quo could be risky business.
For example, suppose a new parent has adopted a work schedule that permits them to care for their newborn while attending to the core tasks of their job via remote work. Asking that employee to return to the office raises a potential human rights issue.
Employees have obligations too
Accommodation is a two-way street. While employers cannot be willfully blind to an employees’ needs, it is the employee’s responsibility to communicate those needs, along with the particular circumstances underlying them. With respect to child-care, it is perfectly acceptable (and prudent) to ask an employee about what arrangements they have made and/or looked into, in considering the accommodation request. One employee who recently claimed discrimination based on family-status at Ontario’s Human Rights Tribunal, lost their case for failing to advise their employer of their particular needs, even though those needs may well have required accommodation if properly communicated.
When it comes to accommodating a health issue, employers must tread carefully when requesting information. In general, employers can request information with respect to an employee’s prognosis, workplace limitations and needs, but the employer should stop short of requesting an actual diagnosis. Employees are obligated to provide legitimately requested information. Any request for employee medical information requires careful consideration for confidentiality and privacy issues and, should be discussed with counsel beforehand.
Managing human rights issues
Employers should proactively anticipate human rights issues when recalling employees back to work. When it comes to accommodation, a collaborative, rather one-size-fits-all approach, is the most effective in our experience. The lawyers at Hyde HR Law are pleased to assist with your workforce strategy and planning. Contact us for expert guidance and advice.