Employers’ Duty to Accommodate – Where Does the Balance Lie?achkarlaw-admin
Ontario employers have many obligations with respect to their employees, including their duty to accommodate their employees Human Rights needs, treating their employees in good faith, avoiding discrimination, and maintaining a safe work environment. Obligations are set out in federal and provincial statutes, as well as common law, depending on the employment relationship and the nature of the employer. Making sure which law applies is important, as there may be some differences.
Equally as crucial, is knowing how to balance these obligations when it appears they conflict.
When Obligations Conflict
Employers need to ensure they are meeting their obligations to avoid liability; however, this can be difficult when different obligations conflict. While human rights obligations often take precedence over other obligations, the duty to provide a safe workplace environment may pose a challenge.
While an employer may decide to waive or modify their health and safety policy to accommodate an employee, the employer must consider how doing so may create risks to employees and the public. Likewise, if an employer wishes to impose a policy that on its face, appears discriminatory, it must ensure its requirements meet the bona fide occupational requirement test.
There are also situations where obligations which arise from the same statute conflict. For example, obligations under two or more separate human rights grounds may conflict. An employer will need to ensure they address their obligations, particularly when one duty may outweigh another necessarily, in a manner which can be properly justified in a non-discriminatory manner.
What to Keep in Mind
Employers should ensure they know what duties they must meet and understand the relationships between potential and actual conflicts. Sometimes, employers may have good intentions in terms of fulfilling one duty at the expense of another, but if the law has already outlined situations where one duty should precede another, employers may find themselves in hot water.
Similarly, sometimes not meeting one’s duty may lead to a breach of another duty, leading to potentially greater damages.
Employers should therefore also be aware of what may constitute as undue hardship when it comes to their ability to meet their obligations. Often, what an employer believes to be undue hardship does not meet the test of undue hardship under law.
The duty to accommodate is complex and onerous on both employers and employees. If you are an employer looking to ensure compliance with the law while attempting to balance your obligations, or an employee seeking to clarify your rights, our team of experienced employment and human rights lawyers are happy to help.
If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.
Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].