Work From Home? Is There a Duty To Accommodate?

COVID-19 has changed the way that many people work and conduct their businesses. Many companies have allowed employees to work from home where possible, and some are continuing to encourage a work-from-home approach after seeing the benefits play out.

Other businesses are embracing the fact that COVID-19 restrictions are lifting and are encouraging employees to return to in-person work. This might be a choice that they have made based on how their business runs or based on other reasons that they may or may not tell their employees about.

However, not all employees are anxious to get back to in-person work. Many people still fall into the at-risk category for contracting COVID-19. Also, many people have grown accustomed to working from home for various reasons. But if you have requested to work from home because you are particularly susceptible to COVID-19, does your employer have to respect that? Can they force you to come in anyway?

Do Employers Have to Accommodate Employee Needs?

In Ontario, employers have a duty to accommodate their employees based on the protected grounds of the Ontario Human Rights Code. The protected grounds included in the Ontario Human Rights Code are:

• Age
• Ancestry, colour, race
• Citizenship
• Ethnic origin
• Place of origin
• Creed
• Disability
• Family status
• Marital status (including single status)
• Gender identity, gender expression
• Receipt of public assistance (in housing only)
• Record of offenses (in employment only)
• Sex (including pregnancy and breastfeeding)
• Sexual orientation.

The purpose of these protected grounds is to ensure that Ontario citizens are not being discriminated against and that their human rights are protected. Employment is one of the spaces that the Ontario Human Rights Code covers, meaning that employers have to make sure that their employees are not being discriminated against in the workplace.

Some of the protected grounds included by the Ontario Human Rights Code are disability and sex (including pregnancy and breastfeeding). These two grounds cover issues such as being at risk for COVID-19 due to a disability, needing to take maternity leave, or needing to be on bed rest due to a pregnancy. 

An employer must make reasonable efforts to accommodate that employee to ensure that they are not being discriminated against. If that employee’s request for accommodation includes working from home, then their employer must make reasonable efforts to meet that need. If those needs cannot be met, the employer must show that they took steps to try but were unable to do so.

However, if an employee has been working from home throughout the pandemic and is then told by their employer that their accommodation needs cannot be met, they may be able to make a case showing otherwise.

What can I do if my accommodation needs aren’t being met?

As an employee who needs to work from home due to a reason related to a protected ground, the first thing you should do is make that clear to your employer. Provide them with written notice that you need an accommodation based on a protected ground, and remind them regularly.

If you have expressed to your employer that you have an accommodation need based on one of the protected grounds listed above (for example, you need to work from home due to a disability that puts you at high risk for developing health problems if you contract COVID-19), and your employer has not accommodated your need, there are several steps that you can take.

The first thing that you should do is to hire a lawyer to look over your options and let you know what steps to take next. A lawyer may be able to write a demand letter to your employer to remind them of the duty that they owe to you to accommodate your needs.

As well, you may be able to take your case to the Human Rights Tribunal of Ontario (HRTO). You may be able to argue that since your employer was refusing to accommodate your needs, you are facing discrimination based on a protected ground.

What if my accommodation needs aren’t based on a protected ground?

In some situations, an employee might request to work from home due to a loved one or someone who lives with them being at risk for COVID-19. Since this doesn’t fall under a protected ground, their employer doesn’t have a duty to accommodate them the same way that they would if that employee was disabled or at-risk themselves. 

When it comes to situations where an employee does not have a protected ground as a reason why they need to work from home, the outcome of a situation will often depend on what is in their employment contract. 

Conclusion

As COVID-19 pandemic restrictions lift, employers are starting to call their employees back to the office. For some people, this is an exciting time when things have started to feel normal again. For others, this time has been stressful, as they may have some reason why they need to continue to work from home.

If your need to work from home is connected to a protected ground, make sure to let your employer know in writing. If your need is still not accommodated, reach out to a qualified employment and human rights lawyer at Achkar Law as soon as possible to learn more about what your next steps should be. 

Contact Achkar Law

If you are an employer or an employee with questions about accommodating a need to work from home, our team of experienced workplace lawyers at Achkar Law can help.

Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist. 

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