Lorenzo Lisi, partner at Aird & Berlis, to speak at HRD Employment Law Masterclass about navigating tricky accommodations
Balancing accommodations in the workplace has always been a significant focus for Canadian employers – however, in the new age of remote and hybrid models, this balance has become increasingly tricker.
Speaking to HRD, Lorenzo Lisi, partner at Aird & Berlis and speaker at our upcoming Employment Law Masterclass, says that an increased awareness on the workers’ part means that employers have to know their stuff – or risk legal action.
"Most employees are far more aware now of workplace accommodations than they used to be," says Lisi. “There's an increased sophistication and knowledge by employees of the requirements of employers as it relates to accommodation, and what would be considered “reasonable accommodation in a particular circumstance.”
At our upcoming Masterclass, Lisi will be joined by Mike MacLellan, partner at CCP, to debate the perils and pitfalls of navigating tricky accommodations while ensuring you remain inclusive. This sessions will provide insights on;
Regarding these accommodation requests, for employers there’s often a fear that meeting the standard of undue hardship—a point beyond which they are not required to accommodate—is an impossible task. However, Lisi suggests that a detailed examination of the specifics of accommodation needs and restrictions often reveals that crafting a reasonable accommodation is achievable.
“With the participation of all parties involvled, legal requirements and the need for accommodation can often balance," he tells HRD. “But it's when one of those is off kilter, that it becomes an issue.”
The issue is compounded by the rise of remote work – especially when an employer requests employees to return to the physical office. As Lisi explains, the foundational element of any return to work plan is having accurate and supported information which the employer can use and understand in order to assess and accommodate an employee on a return to work.
“If the accommodation requested deals with a mental or physical issue, the employee’s medical practitioner is an important piece of the puzzle,” he says. “So that the employer can accurately understand the restrictions and how the job might have to be modified. That doesn't mean that an employer gets a diagnosis – it means that employers need to ask the right questions to determine the precise restrictions to craft the appropriate accommodation.”
Employers need to know what specific restrictions exist, how long they might last, and what modifications to the job are required. This multi-party process involves the employer, employee, medical practitioner and sometimes a union. Here, communication is crucial - accommodations do not need to be perfect but must be reasonable.
"Employees don't get to choose a perfect accommodation," Lisi says. "It's what's reasonable, based on the supported restrictions. It is both procedural (searching for work that meets the restrictions) and substantive (implementing the accommodation."
However, when it comes to mental health related accommodations, employers need to tread carefully. Physical restrictions are often more straightforward and objective, making them easier to accommodate. In contrast, mental health issues can seem subjective and require more precise information.
“For most employers, accommodating physical restrictions is much easier,” adds Lisi. “If somebody has a bad back, or they can't work for as a result of a condition, then that's easier to understand from a workplace perspective. Mental disabilities often appear quite subjective. Many of them are based partly on the reporting from the employee to their doctor who feeds it back to the employer. [Here], it’s even more important to get accurate information so that you can look at those [cases] in a different way - those are the hard ones.”
The duty to accommodate is complex, especially with diverse scenarios such as remote work and various health conditions. For employers, it’s essential to navigate these situations carefully, particularly when employees request accommodations like working from home for reasons that are not strictly health-related.
"Employers need to be very careful when asking these questions but also not be afraid to ask the right questions," Lisi advises.
For example, following the COVID-19 pandemic, many employees have requested to work from home for various reasons, including family responsibilities or mental health concerns. This trend has led to a push and pull between the information employers need and what employees provide.
And, as awareness and expectations around accommodations grow, both employers and employees must work together to find reasonable solutions that align with legal requirements and organizational capabilities.
“If somebody say they can’t come to work because they’re not in a position to leave their children or there's eldercare issues or they have a disability, or they have stress that does allow them to travel – those are the ones where I think it's even more important to be accurate with the information that you gather. Look at what you can do and work with the employee, and openly communicate.”
Want to learn more on how to manage accommodation requests in your workplace? Register for HRD’s upcoming Employment Law Masterclass here.
