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Late last year the Ontario Human Rights Commission expanded its definition of ‘creed’ under the Ontario Human Rights Code. Then in April, the Ontario Human Rights Tribunal ruled that birth miscarriages are a form of disability that could require accommodation, such as time off for the grieving or recovering employee who had been pregnant. Similar decisions that would place an even greater duty on employers are likely to follow.

The big question for employers struggling to meet existing employment law and human rights requirements: Where will this widening scope of accommodation requirements eventually end? To reiterate, employers are obligated to accommodate employees to the point of undue hardship, even if it means incurring direct costs or some form of inconvenience.

But what many employers fail to grasp is the full extent of those accommodation obligations—a challenging task, particularly in the absence of a trained HR professional or a qualified employment lawyer—let alone how to comply on a consistent basis with local human rights and employment legislation.

Non-compliance is not an option, but legal challenges resulting from a failure to accommodate an employee’s needs are avoidable. Here are five key accommodation best practices to keep in mind:

1. Don’t ignore your duty to accommodate

Many employers will claim ignorance after the fact when an employee alleges that her requests for accommodation have gone unheeded. Human rights legislation across Canada doesn’t require employers to predict every aspect of their employees’ accommodation needs, but do require them to act when those needs become evident.

The simple solution is to be proactive and, in cases where an employee is clearly struggling to fulfill her duties or her job performance is slipping, make inquiries to determine the reason why.

At the same time, remember that your obligation to accommodate employees is limited to the requirements set out in your province’s human rights code. Going above and beyond those accommodation requirements may be a noble gesture that will help drive engagement and boost your employer brand, but it can also create new challenges. For instance, it could create an HR precedent across your organization that you may not be able to consistently provide, which may lead to perceptions of unfairness.

2. Assess accommodation requests on a case-by-case basis

While the scope of accommodation requirements are broadening, human rights tribunals expect employers to investigate an employee’s requests and accommodate in accordance with that individual’s specific needs. If a staff member needs time off to manage a long-term illness, for example, that doesn’t mean that exact same accommodation should be automatically afforded to employees experiencing similar conditions or prognoses.

3. Gather the right information

This is where organizations need to invest the time, expense and effort. I often work with employers who fail to understand exactly what information they can and cannot request from employees who are making accommodation requests.

Disability-related requests are a particular challenge for many employers. To be clear, employers are not allowed to ask employees to explain their diagnosis, but they can ask for a prognosis to determine a return-to-work date, whether the employee will be able to fulfill their normal workplace duties, or to determine necessary workplace accommodation requirements.

4. Be sure to follow up

Employees are often accommodated indefinitely or beyond human rights code requirements because employers fail to track their progress and potential changes to a prognosis that could alter their work status or accommodation requirements. Arrange periodic follow-up calls or meetings with employees to review their accommodation needs and remember that you are not required to return an accommodated employee to meaningless work that adds no value to the organization.

5. Accommodation is a two-way street

Many employers believe they have a duty to offer perfect accommodation, but that’s simply not the case. Employee accommodation often entails compromise and employees are required to cooperate with an employer’s accommodation efforts.

Remember, you have a duty to accommodate to the point of undue hardship, but not beyond. By inquiring into an employee’s needs thoroughly when developing an accommodation plan, you have the opportunity to also highlight your organization’s needs and make the case as to why certain requests may or may not be reasonable.

Laura Williams is an employment lawyer and founder of Williams HR Law in Markham, Ont. She has more than 15 years experience providing proactive solutions to employers aimed at reducing workplace exposures to liability and costs that result from ineffective and non-compliant workplace practices.


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