Employment lawyer discusses how best to proceed with mental heath, childcare accommodation requests to work from home
This article was created in partnership with Roper Greyell LLP.
As hybrid work models with some in-office attendance required become the norm, employers are facing a new challenge — namely, a surge in accommodation requests from employees who seek to remain primarily or fully remote.
Maggie Campbell, employment law expert and partner at Roper Greyell, notes that many of these requests can be challenging to navigate - particularly since many are tied to either mental health, or family responsibilities.
Speaking to HRD Canada, Campbell discusses how to navigate these potentially tricky situations without risking a significant fallout.
While the COVID-19 pandemic forced most workers to go remote, the last 2-3 years have seen employers slowly recalling workers back into the office. Most have adopted the hybrid approach; however, as employers start to adjust these policies to require more time in-office, some workers have been pushing back.
“My starting point is usually that employers have the right to set their place of work. However, when employers change the location of work, that’s when things can come to a head.”
One of the key issues that arise is that of constructive dismissal. For employees initially hired as remote workers, a mandate to return to the office could be seen as a significant alteration to their employment terms. They may then claim that their employment agreement has been effectively terminated.
“That can entitle the employee to reasonable notice of termination,” Campbell explains. “Employers get caught in this zone where they’re not intending to terminate employees, and they don’t want to pay severance — they just want people to come to the office. So how should they navigate this?”
“The safest way to do that is to provide employees with reasonable notice of the change,” she says.
This ‘reasonable notice’ will be very individual, and will depend on factors such as job type, or the length of the employee’s tenure. It’s not just about setting a timeline, but also about communicating the change effectively and empathetically, ensuring employees understand the rationale and have adequate time to adjust or explore alternatives.
“We’re seeing a lot of accommodation requests coming in for things like mental health, family status, and childcare responsibilities,” Campbell tells HRD Canada.
When it comes to accommodation requests for mental health, Campbell says a good starting point is to ensure the medical aspect is ‘solid.’
“That’ll typically involve responding to a doctor’s note with a detailed medical questionnaire that gets into the ‘why’ and determining whether it’s a medical need or a preference, or whether there are other forms of accommodation that could be reasonable,” she says.
Ultimately, Campbell notes that granting accommodation doesn’t mean that the worker’s role, responsibilities and hours need to be kept the same. A reasonable accommodation may involve defining the scope of the job or reducing hours.
The other most common request for remote work involves family status — typically childcare, but potentially also from workers who are caregivers to other family members like elderly parents.
Campbell highlights that these types of requests can be particularly difficult for employers to navigate: “It’s challenging because for working parents, there is fundamentally always a conflict between parenting responsibilities and your job,” Campbell says.
“During COVID, a lot of people realized that it’s easier to balance those responsibilities with work if you're not going to the office. That’s something people really don’t want to give up. Again, my key advice to clients is to work out whether it’s a preference or a need.”
Working this out could involve some detailed discussions with the employee about their home situation — and Campbell acknowledges that this can feel uncomfortable. This may include questions about the childcare options, whether the spouse works and what their hours are, whether the school has after-hours care available, etc.
“Employees may be entitled to reasonable accommodations for substantial interferences with family responsibilities, but they’re not entitled to accommodation for that regular conflict between work and parenting that we all,” Campbell said. “But we know that it’s a tough needle to thread.”
Ultimately, Campbell’s advice to employers is not to rush into any decisions when faced with an accommodation request. If a request is wrongfully denied, this could lead to significant issues — most notably, a human rights complaint. Therefore, it is vital for employers to go through the process very thoroughly before making a final decision.
“Gather the information you need, whether that’s medical questionnaires, or the interview with the employee about their home situation,” Campbell says.
“You really do have to do this on a case-by-case basis — there’s no one-size-fits-all solution.”
