'The employer must do anything reasonable or practicable to allow the employee to fulfill work responsibilities'
“If you get an accommodation request, the expectation is that you’re going to take it seriously and you’re going to sit down, look at your enterprise, look at the employee and all work together to come up with something that works for everybody.”
So says Jay Lannon, labour, employment and human rights lawyer at Forte Workplace Law in Vancouver.
“As case law develops, it’s clear that it is a significant duty on employers, and that human rights decision makers, they want to see employers take this accommodation seriously and really put their mind to what can be done to allow this employee to continue to work in a way that’s meaningful to them and meaningful to the business — without causing undue hardship to the business.”
Lannon will be speaking at the upcoming Employment Law Masterclass Vancouver event to be held Feb. 22, 2024 online, and they shared some thoughts about the panel discussion regarding family status accommodations and how employers should handle employee requests.
New ruling changes key requirement
In the past, when such a request was made, “the test for what they had to show in order to demonstrate that they were entitled to accommodation is they had to show that the employer had initiated a change that was impacting on their family-care obligation,” says Lannon.
However, after a recent case ruling, this condition is no longer required.
“This year, we had a case come down from our court of appeal in B.C., that removed the first part of the test so it no longer needs to be an employer-initiated change. It can be a change in the employee’s personal circumstances. So, for example, having a child, and your personal circumstance that can lead to your employment coming into conflict with family obligations,” they say.
This means that employers might feel on shaky ground when it comes to getting it right with accommodation, says Lannon.
“It’s good for employers to be aware that there’s unpredictability with regards to what test applies, whether an employee is entitled to accommodation in relation to any family caregiving obligation, or whether it’s only substantial caregiving obligations.”
Reasonable accommodation
The other part of the responsibility to accommodate remains similar, says Lannon.
“When you have an employee come to you who requires accommodation, what the duty requires is that the employer must do anything that is reasonable or practicable, that can be done to allow the employee to continue to fulfill their work responsibilities.”
“And that can include changing hours to better accommodate the employee’s caregiving schedule requirements; changing job tasks [while] not changing the fundamental nature of the job but maybe removing some job tasks if the overall job is still being done because it is something that duty to accommodate may require,” they say.
Even small mistakes can be expensive for employers when handling accommodation, says another employment lawyer.
Steps for HR on accommodation
With the new regime in place, “the employer’s requirements to accommodate employees may be broader than it was before,” says Lannon.
Some key steps that should be undertaken include HR coming up with a streamlined way of handling future requests.
For people leaders, they should also be trained on the entire process or else face their own legal jeopardy, according to Lannon.
“It’s also important for the managers because the managers can accrue personal liability if they fail to actuate or appropriately represent the employer in relation to the duty to accommodate. The managers, who I think very often in most organizations are doing the frontline accommodations, if they get it wrong, not only can they accrue liability for the employer, they can accrue liability for themselves.”
