Accommodating the present and the future

Human rights awareness is greater than it’s ever been, and employers should act accordingly heading into 2017

By Jeffrey R. Smith

The holiday season is here and the end of 2016 is around the corner. The holidays are a time of celebration and appreciation of what we have, while year-end is a chance to look back on what transpired and to plan for the future. For employers, it’s an opportunity to be reminded of what works and what can cause trouble when it comes to managing workforces.

For the most part, we can celebrate the existence of human rights in our country. While we’re not perfect, our society recognizes the rights of everyone to be free of discrimination based on many factors, such as race, religion, place of origin and disability, among other things. This can lead to potential headaches for employers, but in the big picture benefits them as well. A happy, healthy workforce is a productive workforce. And welcoming all types of people creates an expanded talent pool with more strong performers.

2016 — and for the past few years before — has seen more awareness and protection in the area of human rights, particularly in relation to employment, with an increase in the prominence of family status. Employers must be careful in dealing with employees who have changing family obligations, as the duty to accommodate applies more and more to such circumstances. It can be good practice for employee morale for employers to be flexible to employees who have pressing family duties, but recent cases have shown an increase in legal requirements to accommodate certain employee family needs — or at least reasonably investigate accommodation options. For example, see Miraka and A.C.D. Wholesale Meats Ltd., 2016 HRTO 41 (Ont. Human Rights Trib.).

Disability is another area of human rights and accommodation that evolves regularly, particularly when it comes to employee addictions. For many years, alcohol and drug testing has been a contentious issue, and it continues to be that way. A few years ago, it was determined random testing was reasonable if an employer could demonstrate it had a dangerous workplace. This was upheld by the Alberta Court of Queen’s Bench in 2016 with regards to a Suncor random testing policy for safety-sensitive positions: Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921 (Alta. Q.B.).

Another aspect of accommodation that has been pushed to the forefront is the perspective that it is a partnership in which both the employer and the employee must participate. An employer can’t be expected to accommodate an employee’s disability if it doesn’t have sufficient medical information to determine what accommodation is necessary: See Alberta Health Services and AUPE, Re, 2016 CarswellAlta 243 (Alta. Arb.) and Sun-Rype Products Ltd. and TC, Local 213, Re, 2016 CarswellBC 485 (B.C. Arb.).

In addition, it has been noted that employers aren’t required to meet the employee’s specific demands for accommodation, just to provide reasonable accommodation that can be the employer’s preference instead. And yes, the threshold of undue hardship can be reached: Seaspan ULC and CMSG (Westmoreland), Re, 2016 CarswellNat 5098 (Can. Arb.).

These are just a few examples of how employers’ duty to accommodate has evolved in 2016. The trend is continuing towards greater and more flexible grounds for accommodation, a reflection of greater awareness in society — and this trend will continue as employers will have to address issues such as transgendered employees, employee personal beliefs, and evolving definitions of family status. Old belief systems are giving way to new ones and employers, along with their HR representatives, will need to keep on top of what’s happening or face being left in the legal dust.

But that’s part of living in a progressive and democratic society — something we should all be able to appreciate now and in the year ahead.

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