WHEN TO ACCOMMODATE AN EMPLOYEEJul 16 2015
If you are an employer, you may have run into situations where an employee’s attendance is sporadic or their ability to meet job requirements is compromised because of a disability. You may have heard the term “duty to accommodate”, and may have wondered what your rights are with respect to the disruption to your business caused by an employee’s absences or limitations, and what the employee’s rights are with respect to the duty to accommodate.
A REASONABLE EFFORT TO ACCOMODATE MUST BE MADE.
Duty to accommodate means that employers have an obligation to avoid discriminatory treatment of employees based on prohibited grounds of discrimination. There are, however, limits to how much accommodation is required
The BC Human Rights Act prohibits discrimination in the workplace and says that an employer must not refuse to hire, refuse to continue to employ, or discriminate against a person regarding employment because of their race, colour, ancestry, place of origin, political belief, religion, marital status, family status, mental or physical disability, sex, sexual orientation, age, or conviction for an offence unrelated to the employment.
The goal of accommodation is to ensure an employee who is able to work can do so. This does not mean an employer must fulfill unreasonable requests or fundamentally change working conditions, and the accommodation need not completely alter the fundamental aspects of the contract of employment. However, an employer is required to make all reasonable efforts to accommodate the employee and perhaps arrange duties so the employee is able to do his or her work, including possible re-training or changes to schedule. The duty ends where the employee can no longer meet the basic obligations associated with the employment.
ACCOMMODATION HAS LIMITS.
The duty to accommodate has limits; accommodation should not cause undue hardship to the employer. If accommodation restricts a business from operating properly or a disability denies the employee from returning to work in the reasonably foreseeable future despite the employer’s efforts to accommodate the employee, the test for undue hardship may be met. What constitutes undue hardship varies by circumstance but factors such as health, safety, and cost are all relevant considerations.
An employer may require information about a medical condition, a recovery prognosis, or an assessment of current abilities, and the employee is obligated to provide the employer with the information it requires in order to consider accommodation. An employee who is uncooperative may risk their right to accommodation, but only has to disclose information relevant to the work situation.
SEEK GOOD LEGAL COUNSEL.
The accommodation process can be difficult for both employers and employees. Employers and employees facing an accommodation situation should seek the advice of labor lawyers who are well versed in the law and how it may apply to their unique situation.