The workforce, and the population as a whole, are aging. Statistics Canada has projected that by 2021, one in four employees will be 55 or older. With employees staying in the workforce longer, certain pressures and concerns in relation to older workers are unavoidable.
Prior to the end of mandatory retirement across Canada, the termination of an older employee’s employment was not a major concern for employers — it could simply wait until the employee turned 65 and require her to retire. Today, that’s no longer an option, except in regards to specific types of work such as policing, firefighting and aviation, where a mandatory retirement policy is considered a bona fide occupational requirement.
As a result, employers must tackle the issue of how to accommodate older employees who suffer age-related issues such as reduced skills, abilities and health.
Duty to accommodate
Because being 65 or over is a protected ground of discrimination, employers have a duty to accommodate workers who suffer age-related health issues that diminish their ability to perform the duties of their position. Such employees must be accommodated to the point of undue hardship.
The duty to accommodate requires an employer to recognize and consider the individual’s abilities and limitations. Accordingly, employers must make an individualized assessment of an older employee’s needs and capabilities and adjust his job or the workplace to accommodate those needs and capabilities, unless such accommodation would cause undue hardship.
Further adjustments may be required over time to meet the employee’s changing needs and capabilities.
In meeting its duty to accommodate, an employer must first assess the nature and degree of accommodation that is required. That generally involves gathering information regarding the limitations on the older employee’s skills and capabilities and the requirements of his job.
The employer must then consider what, if any, accommodation is available, and justify any accommodation that is offered or not offered on the basis it would constitute undue hardship.
While each individual case will have its own specific risks, issues and considerations, an employer will be usually be required to consider measures such as flexible hours and work arrangements, reduced duties or hours, or different positions for older employees whose performance or health has declined.
If an older employee finds a physically demanding task challenging, an employer may be required to assign the task to someone else (if it is not part of the essential duties of the position) or seek other ways to accommodate the person. An employer is not required to make up a new job or to keep an employee in a position if she cannot perform its essential duties.
That said, employers are required to take a comprehensive and flexible approach in coming up with reasonable accommodations for an older employee. Although the list is not exhaustive, accommodation options commonly considered include:
• flexible work hours
• compressed work weeks
• job sharing
• employing employees who have elected to retire on a short-term basis
• lateral moves to jobs that are better suited to the employees’ reduced capabilities
• part-time working arrangements
• phased retirement
• lateral mentoring and coaching positions to help with succession plans
• demotions into less demanding or stressful positions
• short or fixed-term contracts.
The duty to accommodate is an ongoing process that may require an employer to revisit the accommodation measures initially provided from time to time and to adjust them as necessary. As part of their accommodation, older employees may also require refreshers, retraining or upgrading of their skills.
Undue hardship refers not only to financial hardship but accommodations that are overly extensive or disruptive to the workplace, change the nature or operation of a business, endanger the health or safety of the employee concerned or other employees, or affect morale or bargaining unit rights. In assessing whether an older employee can be accommodated without causing the employer undue hardship, the following factors will generally be considered:
• financial cost, including the impact on efficiency, cost of renovations or adaptive technologies
• disruption to the terms of a collective agreement and the degree of such disruption
• impact on the job functions of other employees and morale problems that may result
• interchangeability of the work force and facilities
• size of the employer’s operation
• safety concerns, including the likelihood of the risk, its magnitude, and who would bear the risk (such as whether it is the disabled employee, all employees or the public)
• whether the employee’s job itself exacerbates the disability.
It is important to note the responsibility of accommodation does not rest entirely with an employer. Employees are required to participate in their own accommodation.
Such co-operation generally requires an employee to provide medical information, be flexible in considering accommodations offered by the employer and to accept reasonable accommodations offered by the employer, even if it is not the form of accommodation preferred by the employee. Employees are not entitled to perfect accommodation.
Where accommodation results in a lesser job or fewer hours, an employer is entitled to adjust wages or salary accordingly. If the employee is unionized, his bargaining agent is also required to co-operate in the employee’s accommodation, and to consider accommodations that may violate the seniority provisions and other terms of a collective agreement where necessary.
In order for an employer to be able to demonstrate it has fulfilled its duty to accommodate an older employee, it is essential to fully document all the steps it takes, including the information it requested, obtained and reviewed, and each accommodation option that was considered.
The increasing number of older employees remaining in the workplace longer gives rise to a heightened potential for human rights issues. Employers should develop proactive strategies for dealing with an aging workforce to avoid the potentially costly consequences of not doing so.
Trevor Lawson is a partner at McCarthy Tétrault in Toronto. He can be reached at firstname.lastname@example.org.
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