SARC’s Human Resources and Labour Relations Newsletter
In this issue, consultants from SARC and MLT Aikins discuss topics of accommodations in the workplace.
Contents
Considerations for Employers When Managing Long-Term Accommodations
Amy Gibson
The Overall Benefits of Accommodations in the Workplace
Bobbi Janzen
Managing Accommodations in a Unionized Workplace
Scott Mostoway
Bobbi identifies and fosters strategic partnerships with education, labour, other workforce organizations, and community partners to address Disability Service sector workforce needs and assists with talent supply and demand. She also leads workforce promotion strategies to connect job seekers to the Disability Service sector. Bobbi applies her background in talent acquisition, recruiting, and disability sector advocacy to this role and connects with our Members to learn more about the sector’s workforce needs. Bobbi is available to consult with SARC’s Regular and Associate Members on their workforce development inquiries, including recruitment and retention strategies, job descriptions, HR policies and procedures, compensation/total rewards, and succession planning.
Scott can assist SARC’s Regular and Associate Members with a variety of LR/HR issues, including progressive discipline, performance management, and duty to accommodate for unionized and non-unionized organizations. He can also provide specific support in collective bargaining for unionized organizations. Accessing this service is free of charge and can minimize organizational risk. Having a quick check-in or a review done before decisions are made can save you time and money in the end.
Amy Gibson carries on a general labour and employment law practice. She advises employers on a variety of labour issues, including union certification drives, collective agreement interpretation, labour disputes, workplace policies, discipline and discharge, employment contracts, OH&S, workers’ compensation, labour standards and human rights. She has experience with a variety of court and administrative proceedings as well as representing clients before the Saskatchewan Labour Relations Board and in Canada Labour Code unjust dismissal adjudications.
Amy Gibson Partner, MLT Aikins LLP
The duty to accommodate can be a time consuming, detailed, and challenging process for employers. There are no length requirements concerning the duty to accommodate. The duty can extend for months or years. Long-term accommodations can lead to circumstances of undue hardship and frustration of the employment relationship that extinguish the duty. To raise these arguments, employers must address several considerations.
The purpose of the duty to accommodate is to allow employees to participate fully in the workforce without discrimination. The obligation stems from human rights legislation, which prohibits discrimination on protected grounds. In Saskatchewan, those protected grounds are established by The Saskatchewan Human Rights Code, 2018. Examples of these grounds include race, sex, family status, and age. Disability is one of the most common protected grounds that can lead to long-term accommodation obligations.
The duty to accommodate arises when employees establish a prima facie case of discrimination. To meet the criteria, employees must show they have a characteristic that is protected from discrimination under The Saskatchewan Human Rights Code, 2018. Additionally, employees must demonstrate they have experienced an adverse workplace impact, and the protected characteristic was a factor in the adverse impact. For example, loss of employment resulting from a disability which prevented the employee from being able to perform some or all of their job duties.
Employees may make “accommodation requests” for various reasons. The duty to accommodate is only triggered when it is based on a prohibited ground. The duty is not triggered simply by an employee’s preference for a particular shift schedule or a flexible work arrangement. Employers should ensure that any accommodation request has an established prohibited ground present. For example, a medical note substantiating an employee’s disability. Failing to have an employee establish that they fall under a prohibited ground risks the employer creating deficient standards regarding the amount of information that is to be provided by the employee when making accommodation requests. Likewise, it can be exceedingly more difficult for the employer to argue an accommodation can no longer be provided at a future date or in analogous circumstances.
The duty to accommodate places many obligations on employers; however, employees and the union, if applicable, have an equal obligation to cooperate with the employer throughout the process. Employees lack the authority to choose what accommodation they are granted as the responsibility rests with the employer. Additionally, employers are required to lead the search for accommodations as they possess superior knowledge of the workplace and insights on what adjustments can be made. The employer is entitled to information from the employee regarding their limitations. Common examples of accommodations include adjusting shift schedules, job duties, or application of employee policies. Employers have the duty to inquire if they
are lacking valuable information that can assist with the accommodation process. For example, if an employee has a disability, the employer may request medical information to verify the employee’s limitations, whether those limitations are temporary or permanent, the impact treatment may have on their job performance, and the expected timeline for recovery. The recommended best practice is to give the employee a letter outlining what information is needed along with consent forms for medical disclosure. For long-term accommodations expanding several months or years, it is recommended that employers schedule regular communications with the employee to determine any changes to the employee’s limitations over time and obtain updated medical information.
Employees may frequently be covered by an employer’s short-term or long-term disability plan during lengthy absences from the workplace for injury or illness. In other circumstances, an employee may be receiving WCB benefits. A common mistake made by employers is to rely on WCB or their benefits providers for updates on when the employee will return to work. It is important to note that an employer’s duty to accommodate exists separate and apart from any benefits plan or WCB regime. To fulfill its duty to accommodate obligations, an employer should still follow up with employees while off on leave to determine if or when they will be able to return to the workplace.
Employers are expected to make every reasonable effort to accommodate an employee, short of undue hardship. For an employer to claim undue hardship, it must demonstrate that it investigated potential accommodation options and no other steps were reasonable or practical in the circumstances. It is a high standard; therefore, employers are still expected to accept some hardship when accommodating employees, but
not an unreasonable burden. Undue hardship is circumstantial and requires an examination of the established factors.
The factors to consider include:
• financial cost
• adaptability of the workforce and facilities
• safety considerations
• morale of employees
• disruption to a collective agreement
When assessing if undue hardship has been maintained, an employer should carefully document and evaluate the circumstances before reaching a conclusion.
There are some accommodations that are not reasonable to provide and can frustrate the employment relationship. One such example is a lengthy absence from the workplace. In this circumstance, it must be determined whether the employee’s absences have caused serious harm to the employer, such that the employment relationship has been fundamentally undermined. Those absences may be a medical leave for several months or years, where there is no reasonable prospect of the employee being able to return to work for the foreseeable future. Establishing frustration of the employment relationship in this regard is typically a long process. Depending upon the circumstances, employers may be required to tolerate absences for years, rather than just months.
The long-term accommodation process is extremely contextual. An employer should consult with its legal counsel throughout the accommodation process and prior to terminating an employee. It is essential for employers to be advised regarding any potential risks that may occur in the context of long-term accommodations.
Bobbi Janzen SARC Workforce Development Coordinator
The need for accommodation may arise in any sector or organization at any time. It may occur either at the start of hire or along the employment journey. These accommodations can be shortterm or even last throughout the employment cycle. Employees and employers alike must understand the importance of legislation surrounding workplace accommodations under The Saskatchewan Employment Act and The Saskatchewan Human Rights Code, 2018.
Workplace accommodations are adjustments made to a job or work environment that allow employees that fall under the protected grounds of The Saskatchewan Human Rights Code, 2018 to perform their duties effectively. These accommodations ensure fairness and equal opportunities for all employees, including those who may experience disability. Examples of accommodations include modified work schedules or duties, accessible workstations, and assistive devices or technology.
The Saskatchewan Employment Act outlines the legal responsibilities of employers to accommodate employees' needs, whether it be short-term or long-term, ensuring they can perform their job duties without discrimination. The Saskatchewan Human Rights Code, 2018 reinforces these protections by prohibiting discrimination based on protected grounds, which are outlined in The Act, and requiring employers to accommodate employees up to the point of undue hardship.
The duty to inquire is what triggers an employer’s duty to accommodate. This may arise from an employee’s request or disclosure, or when the employer becomes aware or should be aware of performance issues that may arise from an
accommodation need. Mental health or disability may be some of the areas that lead to the duty to inquire.
Accommodations benefit both employees and employers in several ways:
• Retention and Productivity: By providing accommodations employers can retain skilled and experienced workers, reducing turnover and maintaining continuity of service delivery.
• Inclusivity: Accommodations promote inclusivity in the workplace, creating a diverse environment where all employees can contribute their talents and skills.
• Legal Compliance: Adhering to accommodation requirements ensures compliance with provincial laws, reducing the risk of legal issues and promoting a respectful workplace culture.
• Employee Well-being: Accommodations support the well-being of employees by reducing stress, improving work-life balance, and allowing them to perform at their best.
• Cost Reduction: There is a reduction in recruitment costs when turnover rates are low as well as less disruption to service delivery. Accommodation can also lower the cost of absenteeism.
• Improved Productivity and Employee Morale: employees who feel valued will have higher morale, which leads to higher productivity. The ability to perform our jobs safely and to the best of our ability also leads to a higher rate of productivity.
• Recruitment: Being an inclusive employer is a draw for many applicants and widens the talent pool. This inclusivity also helps communicate your values as an organization improving your Employer Brand, where who you are and what you do brings in applicants that have a great culture fit to the organization.
Employers can implement accommodations through a collaborative process involving the employee, human resources, and possibly external resources and service providers if required. This process will differ slightly in unionized workplaces. It is important for employers to engage in open communication with employees to understand their specific needs and determine appropriate accommodations. The accommodation process is very individualized and may require collaboration with medical professionals. Accommodations can be simple or more complex and can include things such as a job share, a gradual return to work plan, assistive technology, changing methods of communication or font, change in break schedule, utilizing PPE that allows for lip reading, or modification of certain duties. Accommodations can be temporary or long-term, but the bottom line is they allow employees to perform their best without discrimination.
Accommodations can be a daunting thought for employers. Not all accommodations are costly, and not all employees who experience a change in family status or who experience a disability will require accommodation. Making the process less fearful for both the employer and the employee can lead to greater communication and higher
staff retention and engagement. While accommodations are beneficial, they can pose challenges such as cost implications or logistical adjustments. Collaboration with applicable organizations, such as those who specialize in assistive technology or workspace adaptations, can provide guidance and support in implementing effective strategies and solutions tailored to the individual needs of employees. By implementing these, you will create a collaborative and inclusive environment with greater staff retention and less disruption to service delivery. However, if the accommodation leads to undue hardship for the organization and will lead to termination, it is wise to consult with legal counsel regarding termination in this respect.
In conclusion, workplace accommodations play a vital role in fostering a fair and inclusive work environment in the sector. By complying with The Saskatchewan Employment Act and The Saskatchewan Human Rights Code, 2018, employers demonstrate their commitment to equality and support for employees. Through proactive planning, communication, and collaboration, employers can successfully implement accommodations that benefit both their employees and the overall success of their organizations. Recruitment, retention, and inclusion are all benefits of this process. Accommodations not only meet legal obligations but also contribute to a positive workplace culture where diversity is celebrated and every employee can thrive.
Scott Mostoway
SARC Senior Labour
Relations Consultant
Workplace accommodations and the duty to accommodate will most certainly arise for employers at some point or another during their continued operations. Rooted in legislation, the duty to accommodate is an obligation from employers to ensure they do not discriminate against employees based on protected grounds. This requirement also ensures that reasonable and practical accommodations take place beyond strict and stringent workplace rules and policies. Whether it’s from simple to complex, or informal to formal, accommodations are at the heart of workforce participation. We know that claims of discrimination based on the duty to accommodate generally involve an employee making a claim against the employer to The Human Rights Commission, but what happens when we operate in a unionized environment?
Traditionally in a non-unionized workplace the accommodation process is a two-party relationship between the employee and the employer. In a unionized environment this is commonly referred to as a tri-party relationship that involves the employee, the union, and the employer. Together, there are shared responsibilities and obligations on all parties in solving accommodation solutions. Simply put, the employer’s obligation is to accommodate up to the point of undue hardship. What commonly gets forgotten are the obligations that arise on the employee and the union in accommodation cases. Both the employee making the accommodation request as well as the union have the obligation
to participate in the accommodation process. Meaning that for an accommodation request to be accepted, both the employee and the union are to assist the employer in making an informed decision about the accommodation. This generally includes providing requested medical information to substantiate their claim as well as accepting not what may be deemed the “best” accommodation, but a reasonable accommodation given all the applicable circumstances.
Whether you are a seasoned veteran or relatively new to accommodation requests, it never hurts to have a quick refresher on the accommodation process when a request is made. The following steps are a great place to start when reviewing an accommodation situation:
Step 1: Determine if there is a need for an accommodation.
Step 2: Determine if the accommodation should be facilitated.
Step 3: Request medical information.
Step 4: Obtain appropriate medical information.
Step 5: Determine a reasonable accommodation.
Step 6: Implement accommodation.
Step 7: Monitor accommodation.
Step 8: Consider undue hardship in relation to an accommodation.
A more in-depth review is available in SARC’s Management Resource Area where you will be able to review several resources and templates to address your concerns throughout each step of the process.
Although it may not be contractually required to have union representation during the accommodation process, it is advisable to keep the union apprised and involved in the situation. This becomes even more the case in smaller organizations in which accommodation solutions may not be as available. Commonly, accommodation decisions could have an impact on the work of others in the work area if options are limited.
Assume that you have taken what you believe to be all the appropriate steps in dealing with an accommodation request. What happens if an employee or the union does not believe that an employee is being properly accommodated in the workplace?
Unlike non-unionized workplaces in which employees make human rights complaints through The Human Rights Commission, the
traditional recourse for accommodation disputes in a unionized environment is through the grievance and arbitration procedure. Although both forums are permissible to employees, employers will generally want these disputes heard by a labour arbitrator under the collective agreement. For the most part, labour arbitrators are more specialized in the workplace as well as in collective agreements as a whole. Adjudicators from The Human Rights Commission do not generally specialize in the workplace and instead focus on human rights related to the human rights code.
If you as the employer find yourself in a difficult accommodation scenario, please know that you can reach out to SARC’s Member Services and receive a second opinion and guidance along the way. Our team is always here to assist you in meeting your legislative and collective agreement obligations while still providing a safe and efficient workplace.
Use the promo code SARC50 to get 50% off your registration fee
It’s essential for you, as a human resources professional, to be aware of legal rights and risks in the workplace. Join us for this intermediate-level, in-person seminar covering labour and employment topics tailored for Saskatchewan HR professionals. This seminar is brought to you by MLT Aikins in partnership with CPHR Saskatchewan.
In this half-day seminar, you will hear from our experienced team of labour and employment lawyers on the topics that matter most to you. Don’t miss this chance to gain valuable insights, learn from our lawyers and connect with fellow professionals. Join us virtually or in person.
• Long-term accommodations
• Tips and tricks for managing overtime
• Practical tips for workplace investigations
Speakers:
• Shane Buchanan
• Allison Graham
• Jianna Rieder
• Callie Schwartz, Moderator
• Zoe Johansen-Hill
• Meghan Johnson
• Anna Sigurdson, Moderator
Regina: Tuesday, September 17 Networking lunch: 12-1 p.m. | Seminar: 1-4:30 p.m. CST
Saskatoon or Virtual: Tuesday, September 24 Seminar: 1-4:30 p.m. | Networking reception: 4:30-5:30 p.m. CST
Cost: Registration Fee ($250) + GST & PST ($27.50) = $277.50 per person.
As a member of SARC, you can use the promo code SARC50 to get 50% off your registration fee.
Space is limited. Only employers or their representatives are eligible to attend. We reserve the right to decline registrants.