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solution. A solution may meet one employee’s requirements but
not another’s.
Fourth, consider that the duty to accommodate may require
modifying performance standards, policies or shift and schedules
for work. If an employee is unable to perform the standard, but
the standard is not considered an essential part of the employee’s
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job, it can be changed, removed altogether or reassigned to anoth-er
employee. The same goes for policies and shifts or schedules.
If they are essential, the employer is nevertheless required to ac-commodate
the employee. This may include an adjustment of that
performance standard, application of the policy or hours – to the
point of undue hardship. Remember that determining whether an
accommodation is “appropriate” is a completely separate determi-nation
from whether the accommodation would result in undue
hardship.
Fifth, understand that accommodation is a cooperative process
that is a matter of degree, rather than an all-or-nothing proposi-tion.
The accommodation process is a shared responsibility. The
employee must cooperate and provide relevant information, in-cluding
advising what they have done to attempt to address the
conflict and any available outside resources about which they have
inquired. Take an active role in ensuring that alternative approach-es
and possible accommodation solutions are investigated and
canvass various forms of possible accommodation and alternative
solutions. Document your efforts. Grant accommodation requests
to the point of undue hardship bearing in mind that you are not
required to grant accommodation greater than what is needed.
If you implement these best practices, you will find that if the
workplace parties try to seek a balance in a cooperative, open-minded
manner, they will each get what they need. ■
Sheryl L. Johnson is a partner in Fogler Rubinoff’s Employment and
Labour Law Practice Area.
Accommodation of a childcare or eldercare situation can be
appropriate and beneficial to both employers and employees
HRPATODAY.CA ❚ SEPTEMBER 2014 ❚ 17