to care for a child or elder, then a failure to accommodate (subject
to proving undue hardship) will lead to a finding of discrimination.
PRACTICALLY SPEAKING
Given the law, employers should expect a lot more requests for accommodation
due to family obligations. So what is an employer
to do?
The first step for employers should be to review and, if necessary,
update their policies and procedures concerning accommodation
in order to treat each request fairly and independently. Each accommodation
request comes with its own set of facts and history
and while employers may sometimes be hard-wired to reject requests
that seem trivial, being both compassionate and creative
and avoiding a “one size fits all” approach to accommodation may
be far more effective.
Remember that employers are entitled to ask for information
concerning a specific accommodation request in order to make
an informed decision. For example, what are the specific needs of
the child or elder care, and has the employee sought out alternatives
to deal with them? And what is the duration of the requested
accommodation?
In addition, employees are not entitled to “perfect” accommodation,
but one that (based on the information) is reasonable in
accommodation
the circumstances. Open-ended requests without the support by
appropriate and necessary information need not necessarily be accommodated
and employees cannot “cherry pick” the job/shift or
accommodation they prefer.
Further, the duty to accommodate is a multi-party inquiry that
involves not only the company, but the employee as well (and if
unionized, the union). A failure to participate in their accommodation
may impact the employee’s right to that accommodation.
And finally, the need to document and follow up on the accommodation
once implemented is critical. Often times, employees
are left in accommodated roles as a result of neglect or because
they are “out of sight, out of mind.” Employers must be vigilant in
following up and reviewing the accommodation and, if necessary,
modifying or even eliminating the need for the accommodation if
the circumstances have fundamentally changed.
Life is becoming more complicated for employers and employees
alike. The hope is that in the long run, with practice, patience
and creativity, both sides will be successful in integrating the need
for family status accommodation in a manner which addresses the
employee’s concerns as well as the employer’s operational needs. n
Lorenzo Lisi is the practice group leader of Aird & Berlis LLP’s
labour and employment group.
GIVEN THAT THE OBLIGATION
TO ACCOMMODATE, OR AT
LEAST INQUIRE INTO POSSIBLE
ACCOMMODATION, MAY EXIST
EVEN WHERE THE CHILD OR ELDER
CARE ARRANGEMENTS ARE ONLY
“DIFFICULT” OR “IMPRACTICAL,”
HOW CAN EMPLOYERS KNOW
HOW FAR THEY HAVE TO GO
IN ACCOMMODATING WHAT
WERE FORMERLY FAMILY
“LIFESTYLE CHOICES”?
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HRPATODAY.CA ❚ OCTOBER 2016 ❚ 35