With COVID-19 public health measures easing and businesses reopening, there is a lot of confusion on the part of employers regarding health and safety obligations as employees return to the workplace, and how that balances against their duty to accommodate. This article explains the different elements at play and what employers need to consider as changes are made in the workplace due to COVID-19.
What duty to accommodate means for employers
As COVID-19 imposes many unprecedented challenges onto employees’ lives, employers should be prepared to be more flexible.
Most employers already know that under Ontario’s Human Rights Code (“Code”), every person has a right to equal treatment with respect to employment without discrimination or harassment due to specific identified protected grounds. Protected grounds include race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability (“Protected Grounds”).
With the re-opening of businesses and many workers returning to the physical workplace, requests for accommodation due to COVID-19 have increased. Employers need to know the difference between legitimate workplace accommodation requests and those rooted in fear and anxiety.
If an employee cannot meet part or all of the requirements of their job without some modification, then an employer’s duty to accommodate might be triggered. As an example, employees may be required to wear a mask on the premises as they are serving clients, but if an employee cannot wear a mask due to a medical condition (disability, a protected ground), the employer should consider other alternatives to wearing a mask instead of terminating the employee right away. Accommodation could include finding an alternative role where wearing a mask is not necessary. If the employee refuses to wear a mask simply because they do not like it, that preference does not need to be accommodated legally.
In situations where there is a legitimate medical condition, the employer cannot discipline or fire the employee for not meeting a job requirement, but must offer accommodation to the employee. The specifics of such accommodations need to be worked out collaboratively by the employer and employee. The employee needs to provide supporting evidence to show that their health condition prevents them from wearing a mask. In this case, it could be in the form of a doctor’s note. This duty to accommodate is not unlimited in nature, but the employer must offer accommodations to the point of undue hardship. This could mean that if all roles require the employee to wear a mask, and alternative protective measures will not be sufficient for the safety of the others, the employer may no longer have a job for the employee.
Work From Home and Return to Work Policies
Although many employers and employees may be eager to go back to their workplaces, there are others who are fearful and anxious. Work-from-home policies are still essential for many due to COVID-19’s impact.
As part of return to work policies, some employers may implement mandatory vaccination policies. However, in rare cases an employee cannot get vaccinated due to a medical condition (a Protected Ground under disability) such as being allergic to the vaccines. The employee must have a credible medical opinion confirming their condition. If the working environment demands fully vaccinated employees, the employer may need to consider offering them the option of working from home. However, if work cannot be completed remotely, the employer may be able to deny the request to work remotely on the grounds of “undue hardship”. Such a decision should be reviewed by a qualified employment lawyer as each situation is unique.
As the economy reopens, there also may not be sufficient daycare available, and public health guidelines in schools may require extended quarantine periods at home for children. Some parents may need to be home with their children. In this case, a flexible working schedule or working from home may be suitable accommodation choices.
Dealing With Pandemic Anxiety Amongst Employees
As pandemic anxiety may affect mental health and overall performance for some employees, employers may need to establish open channels of communication with employees and their managers. An assessment by a mental health professional or a referral by a doctor regarding their conditions may justify an accommodation. The employer and employee then need to agree on a suitable working environment to accommodate their situation. Employers are required to individualize their accommodation plans to the needs of specific employees instead of providing a one-size fit all solution, so it is crucial to have timely and sufficient discussions on these issues.
Changes To Day-To-Day Operations at Work
Employers making adjustments to their daily operations due to COVID-19 precautions may lead to requests for accommodation. For example, if an employer requires all employees to wear masks and/or be fully vaccinated, some employees may not be able to comply. Refusing to wear masks or be vaccinated simply because you don’t like masks or are afraid of the vaccine is not sufficient to trigger the duty to accommodate. The employee needs to provide evidence of a condition based on “Protected Grounds” such as a health condition, which means they cannot meet the requirement of the employer. The employer should be aware of such possibilities and discuss them with the employee to find a suitable solution. If no accommodation can be made or if the employee does not have a reason based on Protected Grounds for refusing to wear a mask or getting vaccinated, the employee may be terminated.
Penalties For Not Accommodating
If an employer fails to carry out their duty to accommodate, their decisions can make them liable for the harm and damages the employee suffered. Were an employer to terminate an employee instead of providing accommodations as required, there could be a finding of discrimination on the basis of disability. The employer might also be ordered to reinstate the employee to their original position and pay for wages lost between the termination and the date of reinstatement, plus additional sums for the infringement of the employee’s dignity – which can be very significant!
If you need guidance from an experienced employment lawyer, call today at (416)214-2329 or email info@thehumlawfirm.ca