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EMPLOYMENT LAW
Oct 28, 2014

It takes 2 to make accommodation go right

The duty to accommodate doesn’t just rest with the employer; employees must do their part as well
    


By Jeffrey R. Smith

Human rights are a fundamental part of our society and our country. The Canadian Human Rights Code and associated codes in various jurisdictions ensure people aren’t discriminated against based on certain grounds, including in their employment. As a result, a key part of employment law is the employer’s duty to accommodate employees to ensure employees are able to do their jobs without negative effect based on characteristic protected under human rights legislation.

The duty to accommodate is required to the point of undue hardship, which means to the furthest extent the employer is able to accommodate without negatively affecting the employer’s business.

What’s important to remember for both employers and employees is that accommodation is a two-way process and it’s not just the employer that has a duty. Employees must fully participate in the efforts. Yes, employees have a right to be accommodated, but they shouldn’t have a sense of entitlement that they should be catered to. Employees and employers must work together to come with solutions that best meets the needs of both parties.

It’s been established by the Supreme Court of Canada that employees’ rights to accommodation does not mean they automatically have a right to “perfect” accommodation — an arrangement that fits their wants and needs exactly. There must be a balance between the needs of the employer and the employee, which may not be ideal for either but is a compromise. As long as the employer provides options that are doable and gets the employee working, that can be considered reasonable efforts to accommodate.

CRA employee

Recently, the Canada Public Service Labour Relations Board heard an accommodation dispute between the Canada Revenue Agency (CRA) and one of its employees. The employee, who was an Orthodox Christian, booked vacation days for Orthodox Good Friday and Easter Monday, since they were a week after the Western Christian dates for those holidays, which were designated paid holidays in the collective agreement.

A few days before he was to take those days off, the employee decided it wasn’t fair that he had to use vacation days for his religious holidays and he should be allowed to work on the regular holidays and take his religious holidays off. He pointed to the collective agreement, which prohibited religious discrimination and provided options for accommodation, such as annual leave, compensatory leave, leave without pay, and time off with pay made up by the employee later at the employer’s discretion.

The CRA denied the request because it was too late for him to work on the regular holidays and it wouldn’t have been open anyway. It suggested he could make up the hours later, but the employee said he had a family and didn’t want to do that. The employee ended up taking the days as vacation days, but filed a grievance claiming discrimination.

The adjudicator agreed the employee had a right to be accommodated, but the CRA did make reasonable efforts. The employee had options available to him but he chose not to take them. Also, his request for accommodation was only a few days before the holidays and didn’t give the CRA much notice. It was the employee who failed in his part of the accommodation process, not the employer, said the adjudicator. See Andres v. Canada Revenue Agency, 2014 CarswellNat 3861 (Can. Public Service Lab. Rel. Bd.).

Employees play an important part in the accommodation process. Without their co-operation, employers will find it difficult to assess the employee’s needs and how they will fit in the workplace. The duty to accommodate is fundamental to the employment relationship and, like all relationships, requires input from both parties.


    
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