Accommodation Duties: Employer and Employee Responsibilities

Accommodation is a team effort. It is also a process. Both the individual seeking and the individual providing an accommodation need to be involved in the process of designing, implementing and modifying accommodations. The process of accommodation is a shared responsibility and will be most effective in terms of both employee and workplace outcomes when everyone engages cooperatively in the process.

Below, we explore both the obligations of both employers and employees in the development and implementation of workplace accommodations.

Duties of person seeking accommodations:

Individuals who require an accommodation have a responsibility to help secure the appropriate accommodation for themselves. They are not responsible for coming up with a solution on their own, however, their input is important in helping their employer understand their needs so that they can be accommodated as effectively as possible.

As an employee requiring accommodation, you have a responsibility to:

1. Make your needs known

Counting on your employer to intuit your needs can only lead to frustration. To the best of your ability, you should explain your accommodation needs – ideally in writing. As appropriate and as needed, you should answer your employer’s questions concerning relevant restrictions or limitations you may have. Your employer does not have the right to press you for details about the specifics of your disability, but in order to provide suitable accommodation, they may need to ask for information to better understand your needs in order to meet them in an effective and dignified manner.

2. Contribute to the accommodation’s design

By being part of the discussion and design for your accommodation, your accommodation is more likely to be effective than if left entirely to your employer to create. This means working with your employer on an ongoing basis to monitor, manage and adjust the accommodation as needed.

3. Meet job expectations once the accommodation has been provided

Once you have received adequate and appropriate accommodations, it is your responsibility to meet all of your regular job expectations the same as any employee.

Duties of Employer providing accommodations:

Many workers will, at one time or another in their careers find themselves in need of an accommodation. Employers have a duty to accommodate the needs of their employees to ensure they have equal opportunities for, access to, and benefits from employment.

As an employer you have a responsibility to:

1. Take accommodation requests in good faith

Assume the best of your employees. Unless there is a glaring reason to think otherwise, your employee’s request for accommodation is probably being made for perfectly honest and fair reasons. Go in with an open and compassionate attitude and get to work as quickly as possible to find and implement supportive and dignified accommodations.

2. Actively pursue accommodation solutions

Your business or organization will only ever be as successful as your employees’ ability to do their work. By working with your employees to find accommodations that empower them to work as effectively as possible, you will maximize the efficiency of your workplace. Accommodations often benefit more than the intended party. Therefore, developing policies that are adaptive and inclusive will allow you to manage your staff in a way that is productive and enables them to be their best selves.

3. Seek expert advise

When necessary, you may need to consult with experts (in employment law, design, health etc.) to come up with and implement appropriate and effective accommodations.

4. Keep records of requests and actions taken

In order to ensure that accommodation duties are being effectively pursued, met and implemented, keep a written record of all requests, consultations, actions and feedback involved in the accommodation process. Keep these records confidential.

5. Be aware that an accommodation may be needed even if it is not being asked for

People requiring accommodation may be reluctant to disclose their disability because of social stigma. Stigma sometimes keeps people from revealing their disability or need for accommodation until it is absolutely necessary.

Employers should, as a best practice, educate themselves about employee needs and break down stigmas and stereotypes. You don’t have to accommodate needs you don’t know about but you should be observant to sudden changes in employee behaviour. You have a duty to assess the situation before imposing punitive measures. For example, if a reliable employee starts to perform poorly, reach out with compassion and dignity to see if there is a way you can help them be their best selves. You should provide a range of opportunities for your employee to reach out for help.

If you have been denied accommodation in your workplace, contact the employment law team at KCY at LAW to discuss your options, call us at 905-639-0999 or click here to book your consultation.

Workplace Suspensions in Canada

Workplace Suspensions

When it comes to workplace suspensions, there is often a lot of confusion among employers as to their rights and obligations should they wish to suspend one of their employees. This article is intended to give employers a better understanding of if, when and how they can suspend an employee.

When can you suspend an employee?

As an employer, you might assume that you have the right to suspend your employees should you feel doing so is reasonable and necessary (for example, as a means of progressive discipline to address workplace misbehaviour). However, generally speaking, most employers do not have the right to suspend their employees from work – even for bad behaviour – unless this right is explicitly detailed in their employee’s contract.

The authority to suspend an employee as well as the details of how a suspension will be handled and under what circumstances it will be administered should be included in the terms of the employment contract. Otherwise, employers will risk being accused of constructive dismissal in the event that they suspend and employee (particularly if they do so without pay).

Workplace suspensions broadly fall into one of two categories: Administrative and Disciplinary suspensions.

Administrative Suspensions

Administrative suspensions are most commonly used when an employee is accused of workplace misconduct that requires further investigation. Removing an employee from the workplace for a reasonable and temporary period of time in order to properly investigate an incident may be acceptable under certain circumstances.

According to the requirements set out in Cabiakman v. Industrial Alliance Life Insurance Co. an administrative suspension:

  • Must be necessary to protect legitimate business interests
  • Requires the employer to act in good faith
  • Must last as short a time as possible

Must be paid except for truly exceptional circumstance

Disciplinary Suspensions

A disciplinary suspension may, under limited circumstances, be used as part of a process of progressive discipline to address workplace misconduct. As with an administrative suspension, an employer’s right to use this type of suspension should be clearly and comprehensively detailed in the employment contract. Disciplinary suspensions can only be unpaid if there is an express clause in the employment agreement allowing for an unpaid suspension and even then, an unpaid disciplinary suspension can still land an employer in hot water.

Do suspensions need to be paid?

As mentioned above, under most circumstances, yes, workplace suspensions need to be paid.

Suspending an employee without pay will be considered constructive dismissal by the courts is most situations. Requiring an employee to stay home without pay constitutes a unilateral and fundamental change to the employment relationship and is therefore a breach of contract and legitimate grounds to claim constructive dismissal.

Furthermore, just because a suspension is paid doesn’t mean an employer will necessarily be in the clear from a court’s perspective. Courts don’t just care about an employee’s loss of benefit (i.e. pay) in the event that they are suspended from work. They also consider an employee’s sense of injury to ‘identity and self-worth’ when determining if a workplace suspension was reasonable and acceptable.

Key Takeaways for Employers

Suspending an employee from work is a difficult decision to make and one that carries many risks for employers. Suspending an employee is a drastic measure that can permanently impact an employment relationship if not handled with the utmost care.

As with most workplace matters: communication is key. As an employer, should you determine that it is necessary for you to suspend an employee, it is your responsibility keep your employee informed of the reason for their suspension, it’s length and purpose. You should give them time to process the information and ask questions.

Above all, you will need to have a well-drafted employment contract that explicitly gives you the right to suspend an employee and sets out the conditions under which this tool may be used and what its implementation will look like.

In all cases, suspensions must be reasonable and justified and the burden of proof to demonstrate this rests with the employer. Therefore, all workplace suspensions should be handled with the greatest care. You should work with a respected employment lawyer when considering any kind of suspension for an employee to ensure that the process will lead to a productive outcome.

To speak with an experienced employment lawyer about workplace suspensions or any other employment law matter, call us at 905-639-0999 or click here to book your consultation.

Romance in the Workplace: What Employers Need to Know

With Valentine’s day just around the corner, romance is in the air. And while there may be a dating app out there promising partners to match every taste, there is still something to be said for the thrill and spontaneity that comes with finding romance out in the real world: at a café, the grocery store, a painting class or perhaps even at your place of work.

Workplace relationships are nothing new and are fairly common. However, unlike romances between people that are sparked online or at a café or park or college classroom, relationships between coworkers can create unique risks and challenges for their employers.

For many employers, finding out that two of your employees are in a romantic or sexual relationship can be stressful. Indeed, most employers would probably prefer if their employees never dated one another because of the complicated employment and even human rights issues that can arise as a result.

Risks associated with workplace romances

When it comes to workplace romances, the troubles usually start when the relationship ends, which most do. If both parties are not able to maintain a civil, professional relationship, they can create a toxic workplace for all.

Of paramount concern to employers when it comes to their employees becoming more than just friends with one another is the risk of harassment complaints. It is every employer’s legal obligation to provide a harassment-free working environment. Everyone has the right to a safe, comfortable and harassment-free work environment.

The line between flirtation and harassment can be thin and you should therefore always make sure that any workplace relationship is consensual. If an employee claims that a relationship was not consensual and that they were harassed after a workplace relationship has ended, the employer may need to launch a workplace investigation to address such an allegation.

However, most relationships between coworkers do not lead to complicated workplace scenarios. Challenges usually only arise if the relationship is incompatible with the employees’ duties. For example, a conflict of interest can arise if the employees in a relationship have reporting duties to one another (i.e. one of the partners is the superior and the other is their subordinate).

Best practices for employees

Consenting relationships are not illegal but they may still be against workplace policies. Employees should therefore familiarize themselves with their workplace’s policies concerning romantic relationships between coworkers and disclose such a relationship if it develops to HR when appropriate.

As an employee, you have the right to a safe, comfortable and harassment-free work environment. If you are harassed in your workplace, you should document and report the incident to HR as soon as possible.

Best Practices for Employers

Given the challenges that may arise from workplace romances, employers may be tempted to forbid them altogether, which would technically be your right to do. Employers have the right to terminate an employee for breaking such a workplace rule, however, you would need to use progressive discipline for non-compliance in order to justify a just-cause termination.

However, an outright ban on workplace relationships is an extreme measure that may cost you talented employees or lead them to pursue their romance in secret. A more reasonable option for employers would be to forbid relationships between employees with direct or indirect reporting duties (i.e. between superiors and subordinates).

A better option still is to have reasonable, clear and comprehensive policies regarding harassment and workplace relationships and to apply these policies consistently. Employers should properly train their employees on their policies, reporting procedures and any corrective measures they have in place. A good general rule, for example, would be to require that employees disclose workplace romances to HR.

Your main concern as an employer, in addition to the safety and comfort of your employees should be to minimize the disruptive impacts of workplace relationships. As long as a workplace romance doesn’t impact or interfere with your business interests, breach policies or present some other risk, employees’ romantic relationships with one another shouldn’t pose too much of a concern.

In the end, workplace relationships are a complex landscape to navigate and must largely be dealt with on a case-by-case basis. An experienced employment lawyer can help you develop comprehensive and functional policies to govern workplace romance and procedures for addressing challenges should they arise. Call us at 905-639-0999 or click here to book your consultation.