Increased creativity and knowing employee demands is crucial in the duty to accommodate: lawyer
The pandemic has continued to create labour shortages and uncertainty in hiring and retention, even with the recovery of economic activity and several provincial governments lifting COVID mandates. Brittany Carson, a partner at Lavery de Billy LLP, says a significant way to attract potential employees is flexibility and handling accommodation requests like a negotiation.
“I see accommodation as partly a negotiation and not a negotiation to the point of changing the position or the way we do business, but of being flexible, and trying to determine what the employee needs and what we can do to maintain that employment relationship.”
Carson says that the pandemic highlighted employee priorities that were not necessarily prohibited grounds under the human rights legislation but confronted employers with a duty to accommodate.
She says the most significant request is childcare and ensuring that employees with kids at home unable to attend daycare and virtual schooling feel adequately accommodated.
Employees are navigating how to obtain accommodation in childcare in various ways because Carson says family status is not an expressly prohibited ground under Quebec human rights legislation.
She says that employees have become much more conscious and judicious about private details they share with their employer, making it hard for employers to know how to accommodate adequately. Tribunals have also become more demanding in assessing how an employer demonstrates their duty to accommodate.
Carson says the criteria that courts and tribunals have recognized as disabilities warranting a duty to accommodate have broadened substantially in the last few years.
Almost all the tribunal hearing decisions stress that increased creativity needs to be on the employer to understand employee demands and be creative in what can be offered in the accommodation process, she says.
Carson says that employers must have a good sense of their accommodation obligation, what it requires of them, and how they sometimes must think outside the box to ensure they properly discharge their duties.
“We need to be proactive and flexible, but we also need to balance both the needs of the operation and the expectations of other employees.”
Carson is a Labour and Employment law group member at Lavery and advises clients on employment standards litigation, injunctive proceedings, human rights and workers compensation litigation, and employment contracts and company policies review. In addition, she practices labour relations, including grievance arbitration and certification disputes and represents clients before Quebec’s administrative tribunals and civil courts.
She is a member of the Québec and Ontario bars and will be one of the speakers at the Canadian Lawyer’s Employment Law Masterclass on Apr. 28, presenting “navigating workplace human rights and an employer’s duty to accommodate.”
People tend to underestimate the differences in Quebec when it comes to liabilities employers can face for not adequately managing return to work or exercising the duty to accommodate, says Carson.
Unlike the common law provinces, Carson says Quebec has a robust administrative system for dealing with employee claims and complaints.
“Under the Labor Standards Act, we have these recourses specifically for prohibited practices and termination without just and sufficient cause, which automatically put an increased burden on employers.”
Carson says that Quebec’s most significant jurisprudential change was the 2018 Commission des normes, de l’équité, de la santé et de la sécurité du travail v. Alain Caron Supreme Court of Canada decision involving an employee terminated off work due to a workplace injury.
The SCC ruled in the Caron case that the duty to accommodate is a core principle of the Quebec Charter and applies when interpreting and implementing the province’s injured worker legislation provisions.
Consequently, there was no reason to deprive someone who became disabled due to a work injury of principles available to all disabled persons, namely, the right to be reasonably accommodated.
“That decision was a significant change for us, especially here in Quebec. It’s an area where the caselaw has developed quite a bit.”
She says that employers must be proactive when dealing with employees seeking medical accommodations and not just let a third party or insurer manage those requests.
“I see it always where you have somebody receiving workers’ compensation or disability benefits, and employers say, ‘well, the insurer is managing that and following up on medical notes.’ However, as an employer, you have to be proactive and remain in contact with your employee in a way that demonstrates empathy and is conscious that this person is dealing with a medical issue requiring them to be off work.”
Sometimes employers do not necessarily want employees to return to work unless they can work 100%, and Carson says Quebec tribunals and courts acknowledge that businesses need to be more willing to provide and offer a gradual return to work.
“Employers need to start being a little more flexible about allowing employees to come back progressively, and courts require that.”
She says that employees must also consider the nature of the made accommodation request and its impact on their operations. “I’ve had many employers come to me and say an employee is saying that they can never work past 4 pm, and depending on the nature of your operation, that might not be a request that you can accommodate.” However, there has to be an openness to hearing out a complex accommodation request, whether it is something that can be accommodated or considered.
Employers do not need to create a new position for an employee or completely change the job to accommodate. They also do not need to terminate, lay off or reassign other employees to accommodate an employee. Carson says.
When an employer is at undue due hardship, she says the most significant indicator is how the accommodation request entirely denatures the employee’s position.
Employees must do hard work to accommodate before getting to the point of saying undue hardship, but if the position does not resemble what it should or affects the functions of other employees in the organization, Carson says employers may be reaching that point.
“If you’re getting to the point where the position doesn’t resemble what you need the employee to do and what role they’re supposed to play in the organization, you need to start turning your mind to the possibility that you may be up against undue hardship.”