Doctor’s notes, the York University case and childcare have muddied the waters for employers
By Stuart Rudner
The issue of accommodation continues to introduce new challenges and complexities to the workplace.
Less than one year ago, the Federal Court of Appeal confirmed childcare obligations must be accommodated in appropriate circumstances. And within the last few weeks, the media has focused on two separate incidents that relate to accommodation in very different ways — we have seen the story out of York University in Toronto where a student requested that he not be made to work in groups with women, as doing so would contravene his religious beliefs.
And we also had the Ontario Medical Association (OMA) discouraging Canadian employers from requiring doctors’ notes in relation to certain workplace absences.
All of this has caused significant controversy and confusion regarding the rights and obligations of employees and employers.
Employment law update
A couple of weeks ago, I returned to the York Region chapter of the Human Resources Professionals Association (HRPA) and delivered my annual employment law update. As always, there were many insightful questions about employment law. Although we did not discuss the two recent events referenced below, we did discuss the notion of accommodation. One of the points I made is that it is important for everyone to remember that employment law is not static and does not exist in a vacuum. The law is always changing, both as a result of actual changes to legislation and as courts and tribunals interpret and expand the law.
In previous posts, I have discussed how the law regarding the assessment of reasonable notice in the event of dismissal without cause has changed recently. In my discussion at the HRPA York Region chapter, I mentioned the case in which the right to accommodation of childcare obligations was affirmed as an example of the evolution of the law.
Family status is a protected ground under Human Rights legislation, but the primary motivation for that inclusion was to prevent situations where employees, primarily women, were excluded from the workforce when they married, had children or were simply of childbearing age. The definition of family status has expanded over the years to include the identity of one’s spouse, and most recently, childcare obligations.
Employees should remember that just because they have children, they cannot dictate hours of work. However, where there are legitimate impediments to arranging childcare that can be accommodated by the employer without undue hardship, then employees should request such accommodation.
York University incident
The York University incident has generated widespread controversy and, in many cases, outrage. The notion of an individual requesting a discriminatory accommodation under the cloak of religious freedom was offensive to many. My law partner, Natalie MacDonald, and I wrote a piece in Huffington Post about this. We commented on the fact it is not difficult to imagine the evolution from that situation to one where an employee refuses to work in a cubicle, or on a team with, for example, colleagues that are black, Jewish, gay, lesbian, or any other group. As a society, we would never tolerate such a request in a vacuum. What makes it acceptable when it is made in the name of religious freedom?
Essentially, this comes down to a question of competing rights, as both religion and gender are protected grounds under human rights legislation. However, before one even gets to the point of balancing rights, one must assess whether the request for accommodation is legitimate. In this case, as reported in the press, the student made the request in the name of religious freedom, but did not mention a specific religion.
Apparently, the university undertook some research on its own and concluded that no religion would prohibit a male from working in a group setting with females. As far as we are aware, the individual was not asked for further detail.
If such a situation were to be brought before the human rights tribunal, or a court, the first issue to address would be the legitimacy of the request and, in that regard, courts have adopted a "sincerity of belief" test. In other words, individuals making the request do not have to objectively prove it is required by their religion. Rather, they must prove they sincerely believe that it is. This makes sense, given that religious leaders within the same religion will often disagree as to what their laws require. While the test is subjective, there must be some objective element to it, in the sense that it should be difficult if not impossible for an individual to satisfy the test if the request is completely outlandish and unsupported by existing religious interpretations.
Employees should remember that when they need accommodation, no matter what type, they have an obligation to make the request and also to provide sufficient information to allow their employer to assess what must be accommodated, and the potential accommodations that exists. As courts have made clear, accommodation is a two-way street and employees cannot simply submit a bald request and then refuse to provide further information. When I work with employees, I assist them in preparing a package of appropriate information that will, in turn, assist the employer in assessing accommodation options.
Treat accommodation requests seriously
For employers, it is incumbent upon you to treat any request for accommodation seriously. In the childcare obligations case referenced above, the evidence revealed that the employer had not taken the request for accommodation seriously, in the way that it would if the request related to a disability.
When I advise employers, I caution them that just because a request may seem to be outlandish, they should not dismiss it out of hand as doing so can expose them to significant liability if it is found that the request for accommodation was legitimate and they refused to consider it. When we determine a request for accommodation is legitimate, we can then go on to assess the available information and the accommodation options. I work with employers to document their efforts in this regard, as human rights tribunals and courts will be quite critical of employers that respond by stating, simply, that "We can't do that."
Even if that is the ultimate conclusion, it will be incumbent upon the employer to document its efforts to consider any potential accommodation and assess its viability.
Human rights legislation has a very legitimate and important purpose in our society. It is intended to protect groups that have been traditionally disadvantaged or discriminated against and ensure that they are treated fairly.
The scope of human rights continues to expand, and while some may feel it has gone too far, that is no reason to ignore one’s obligations. Employers must address requests for accommodation objectively and in good faith. In so doing, they must also be mindful of the effects of the proposed accommodation upon others, such as women in the context of the York University request. In order to ensure their request has a good chance of being granted, employees should provide sufficient information to allow the employer to understand the reasons behind it, and assess potential accommodations.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at firstname.lastname@example.org. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.