Recent survey shows remote work requests are surging in Canada — presenting ongoing challenges for HR
Return-to-office and hybrid arrangements are bringing a new challenge to HR — a surge in accommodation requests, according to a new survey.
In Canada, half of employers surveyed have returned to work onsite after the pandemic. With that, many experienced a high volume of remote work accommodation requests: 81 per cent of employers have seen an increase in remote work requests based on protected grounds, while 91 per cent have reported receiving requests based on personal preferences, according to a survey by the law firm Littler.
This wave of requests — split between protected grounds and personal preferences — means employers should do more due diligence to understand the difference, says Ellen Low, employment lawyer at Ellen Low Co. in Toronto.
“An employee’s preference not to return to work does not trigger an accommodation requirement or an analysis,” she says. “However, sometimes that preference is actually a coded request pursuant to a code-protected ground — and that’s where things get gray and tricky.”
Two hundred C-suite executives, in-house lawyers, and HR professionals from firms of varying sizes across Canada took part in the Littler survey.
Protected accommodation requests
Accommodation requests are protected by legal grounds when they trigger a human rights obligation, Low says.
“If that preference is actually a request for accommodation on a code-protected Section 5 human rights provision ground, then that triggers an absolute accommodation requirement
According to the Ontario Human Rights Commission (OHRC), there are 16 protected grounds that protect individuals from discrimination.The OHRC notes that accommodation requests most commonly relating to employees include disability, age, religious needs, pregnancy, and caregiving responsibilities.
“I’ve seen a couple that are creed-based, but mostly it’s disability and family status,” Low says.
Grey area: preferences and protected grounds
Sometimes, even when accommodations are framed as preferences, Low says it is the employer’s job to do the due diligence to make sure the request is not connected to a protected ground.
One example is an employee who says they want to work from home to take care of elderly parents — that can trigger the protected code, Low says.
“When you have a request for accommodation, even if it’s coming in under the guise of a preference, the employer can’t be willfully blind,” she says. “The employer probably has an obligation with respect to a threshold of known or ought to have known — is there an easily identifiable ground that does provide protection pursuant to the human rights provisions?”
Employees also have a responsibility, Low says — they need to explain the actual obligation they are raising in enough detail for employers to understand. “There’s a duty to cooperate about functional limitations — what you can and cannot do,” she says.
However, that does not mean employees are required to disclose personal details such as a diagnosis, Low says.
“The employer never gets to know what’s wrong with this person, but they can get to know what the functional limitations are.”
In situations where employees are being vague, Low says it is always safe to echo the same language back.
“'We received your request to continue to work remotely based on a personal preference’ — that’s indicating there’s no code-protected ground being raised,” she says.
Assessing undue hardship
Once an accommodation request has triggered a human rights provision, Low says employers can then evaluate how much they can accommodate up to the point of undue hardship.
Employers need to assess whether an employee needs to be in the office, how much, and what can be done virtually. That assessment is what helps employers put their reasoning on paper defensively.
Common mistakes HR should avoid
The most important thing to avoid with accommodation requests, Low says, is waiting too long to respond.
If, for example, an employee puts in an accommodation request and continues working from home — and the employer lets that continue without responding — it becomes much harder to later argue that in-office presence is necessary, she says.
“The longer you let that backlog accumulate and the longer those requests go unanswered, the harder it’s going to be to defend that you need that person in the office.”
With a high volume of requests, there can also be a temptation to use AI tools to help manage them — something Low cautions employers to avoid.
“I’ve played around with legally specific software that is supposed to help with the point of undue hardship or the requirement to accommodate — and it gets it wrong,” she says.
Humans and HR always have to be part of the evaluation process, Low says.
“Feeding it into an AI bot to determine whether or not your HR can defensively say they’ve hit the point of undue hardship and don’t have to accommodate — big problem.”
