'There were several significant instances of failure on the part of the employer here that were quite alarming'
Recently, an Ontario employer failed to prove it didn’t discriminate against a former employee.
The individual had alleged discrimination because of family status and reprisal or threat of reprisal, contrary to the Human Rights Code.
And the Human Rights Tribunal of Ontario decided the company would have to pay nearly $105,000 for general damages along with loss of salary, benefits and bonuses.
There are lessons to be learned by HR, according to two employment lawyers speaking with Canadian HR Reporter.
Chris Randall, barrister and solicitor in Toronto, says he often comes across employers who believe they are providing sufficient accommodation.
“HR professionals, employers need to understand that their obligations and their beliefs, no matter how well-intended, will not necessarily suffice in the legal context. And what they think is maybe fair is not reasonable or not compliant with, in this case, the code or generally the employment legislation,” he says.
“And in the family status context, they certainly have to look at each case case by case to determine what an appropriate accommodation is in a given set of circumstances or as it relates to a particular employee.”
In addition, employers should have the mindset that their success is not just about an employee doing what they're told, but about working together to have a successful solution, so that performance is high, and their families are taken care of, says Charles Millar, senior associate lawyer at Achkar Law in Toronto.
“If you take that collaborative teamwork approach, you'll avoid these types of human rights violations [where] this employer is about to pay $104,000, plus whatever they have to pay their own legal counsel.”
At the time, her father was deceased and her sister was deemed an “essential worker,” and due to pandemic protocols at the hospital, Cosentino was deemed the primary caregiver of her mother. This meant taking her to appointments, and doing cooking, cleaning and laundry, but the sales rep used her mobile phone and laptop to stay connected to work, and the employer allowed for some flexibility in hours.
However, in September 2020, Octapharma raised concerns about Cosentino’s performance and developed a performance improvement plan (PIP).
And in October 2020, the employer sent an email to Cosentino which changed their terms of work to a head office-based position. While she claimed her role had always involved a home office, the employer contended the role was field-based, not home-based – but this was contradicted in an December 2019 email from the company, and COVID restrictions meant most staff were working from home.
When her mother broke her wrist and required additional care, Cosentino made a second accommodation request based on family status, citing the elder care, which now included daily tasks like eating and dressing, giving pain medication and treating a skin irritation, along with childcare for her school-age son.
It was also better to limit the mother’s exposure to other family members given her condition and the threat of COVID.
But Octapharma, citing the need for improved sales, wanted the employee back in the office, with only a few hours off if needed to handle the family issues.
“All I’m hearing is ‘I don’t want to come into the office because I got a number of things to take care of,’” said the employer in a recorded call. “I want to be clear that nothing is being recanted. For the rest of the hours, we simply ask for you to work out of this location because of business requirements.”
The general manager further advised Cosentino to “drop the COVID nonsense.”
After a call and followup email in late October, management did not communicate further in any way with Cosentino. She was sent a termination letter on Dec. 3.
HRTO: Discrimination, reprisal over family status
In its June 20 decision, the HRTO sided with the former employee:
“The change to the work condition required by the employer would have constituted adverse treatment for [Cosentino] on the basis of family status. Aside from the [employer’s] argument that [her] role was field based, which was contradicted by their own written words, the reality of the situation at that time was most staff were home-based since March 2020 due to COVID-19, as recognized by [Octapharma’s] own decision to eliminate the car allowance payment for their salespeople.”
Further, this required change would have “significantly impacted” Cosentino’s ability to care for her mother and son, and her decision to continue to work from home for the next five weeks, until terminated, “was a form of self-accommodation,” said the HRTO.
While Octapharma argued that Cosentino was looking for “perfect” accommodation, the company did not offer any alternate accommodation solutions other than the previously extended flexibility to attend medical appointments, said the tribunal.
“This lack of action to engage in the accommodation process… is a failure in [the employer’s] duty to inquire fully about the potential accommodation needs of [the employee] based on their family status obligations. At no time did they ask [Cosentino] for information in support of the request, so as to better understand what care the mother required or what obligations [the employee] had,” it said.
Further, in deciding to cease communication with Cosentino, Octapharma “failed in their duty to provide either procedural or substantive accommodation under the Code based on [her] family status.”
Finally, the HRTO cited reprisal by the employer in response to Cosentino’s assertion of her human rights.
Procedural, substantive duty to accommodate
It all comes back to the procedural and substantive duty to accommodate and understand the needs of the employee, and then to take a contextual approach to what the accommodation is going to look like in the specific circumstances, says Randall.
“I think the employer has to ask themselves: ‘Is the rule that's been put in place going to force this employee to choose between working and caregiving or is it going to negatively impact this parent-child family status relationship and the responsibilities that flow from that relationship in a significant way?’”
When Octapharma reduced all communication with Cosentino, it was “entirely inconsistent with this procedural duty to understand the needs of the employee, especially with someone who's on a performance improvement plan, who's working to meet their sales targets,” he says.
“It was kind of a take-it-or-leave-it approach.”
Plus the employer appeared “blind” to the context factor, says Randall.
“They were kind of insensitive to the fact, or unwilling to consider the extraordinary circumstance, of the COVID-19 pandemic. It wasn't your everyday situation.”
In its defence before the tribunal, Octapharma also contradicted itself “frequently,” says Millar, and the chair mentioned their testimony was inconsistent and unreliable.
“It showed that the [employer] couldn't be trusted at any point in time, which is a major issue.”
One of the primary failures of the employer was not working collaboratively with the employee, especially after it sent out the return to office memo, he says.
“They kind of just left it at that… the employer didn't really engage further with the employee, even during the performance improvement plan,” says Millar. “It's almost as though they said, ‘We need you to come in, and if you don't come in, basically your job is going to be on the line.’”
The adjudicator questioned why the employer didn’t do more, considering the employee was able to do her job virtually from home, he says.
“The HRTO indicated that this was a job that could very much be done from home. And, in fact, most people at this employer were working from home.”
This is a situation where the employer could have “tossed up solutions, where they could have continued to work with [the employee] and if they had done that, and she still continued to fall behind in her sales, it's possible that discrimination might not have been found here,” says Millar.
Performance improvement plan amidst accommodations
During the performance improvement plan, Cosentino continued to submit reports to management, but she was not getting any feedback.
“The employee did the best she could for an employer who just wouldn't collaborate with her,” he says.
This was another failure by Octapharma, as it may have been able to use the PIP as a valid reason for denial of accommodation, according to Millar.
“It was fair to say that ‘We're trying to accommodate her, but now she's falling behind it her work, we need to address this,’” he says.
An employer has a duty to accommodate up to undue hardship, says Millar.
“If the business starts to fail, or if the person's performance starts to decline, even with the best accommodations in place, you have to make a decision,” he says.
“If, despite everything the employer is doing, the employee is still not succeeding, and the employer is acting in good faith, then eventually, termination might be an option down the line. And that's something that depends on the situation. But, certainly, courts, tribunals, boards will look at how the employer did everything they could to try to make their employees successful. Ultimately, a job is a job — you have to perform.”
Accommodating family status with aging workforce
More employers need to recognize that employees don’t exist in a vacuum, and they have a whole universe outside of work, says Millar.
“[It’s about] recognizing that responsibility that your employee has not just to their work, but to the people that they love and care about.”
This is especially important given the aging workforce, as baby boomers get older.
“As the graying of the population comes around, caring for the vulnerable, the elderly is going to become extremely prominent. And employers should be prepared for that. That's not just going to be accommodating for childcare… it's going to be you've got a sick parent and there's not going to be enough retirement homes or personal support workers out there to account for this,” he says.
“A lot of people, especially with the rising costs of everything, can't even afford some of those agencies… so, employers should be keeping the finger to the pulse and expecting that, within the next few years, you’re going to see a lot of people looking for accommodations that can take care of elderly parents.”
That also raises the issue of the sandwich generations, taking care of both the young and old, says Randall.
“I think employers and HR professionals need to become attuned to these requests in the future, especially when some of these older adults may still have their own childcare responsibilities or other dependants,” he says.
“Certainly, there could be conflicting duties like there was in this case.”
