At what point is the duty to accommodate no longer necessary for an employer under human rights law?

| May 3rd, 2017 | 1 Comment »

Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground.  The most common grounds of discrimination within the workplace include religion, family status and disability. Other grounds of discrimination include race, colour, sexual orientation, age, sex, and others. Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground. The policy or job requirement does not have to overtly discriminate to be in violation. There simply needs only to be a discriminatory effect. The only exception is if the workplace policy or requirement qualifies as a ‘bona fide occupational requirement’ (BFOR). In order for a policy or workplace task to qualify as a BFOR, there are three points that must be satisfied that the courts have established. Below are each of the points along with an explanation as it relates to workplace policies or job requirements.

  1. The employer must show that the standard (policy/requirement) is rational in relation to the performance of the job.

This is a simple evaluation of whether the standard in question helps to fulfill a workplace goal. For instance, being able to lift 10 lbs. for an office worker may be required to access and retrieve large stacks of files. Having the requirement of being able to lift 10 lbs. in this case would qualify as a job requirement that rationally connects to the job.

  1. The standard in question must have been adopted in an honest and good faith belief that it is necessary to fulfil the work-related purpose.

The employer must also adopt the standard with the belief that it will fulfill a workplace goal or function. Maintaining the above example, the requirement of being able to lift 10 lbs. of weight for the purpose of retrieving needed work materials (such as large documents, files, etc.) would qualify as a good-faith measure. Being able to retrieve files on a regular basis that one is required to work with is a work-related purpose that would require someone to physically lift a minimal amount of weight.

  1. The standard in question must be reasonably necessary to accomplish the legitimate work-related purpose.

The final requirement is the most difficult to establish. In order to establish that the standard is reasonably necessary, employers must show that they would suffer ‘undue hardship’ by accommodating the individual. This step requires employers to explore alternatives that are less discriminatory and still accomplish the work related goal. Sticking with the above example, for a worker that cannot lift 10 lbs. due to disability, reasonable alternatives may include having other workers assist the worker when they are unable to lift the necessary documents/files, providing electronic files instead, or so on.

The idea is that it must be possible to accommodate the individual so that they can perform the essential duties required for their job. If this is not a possibility, then the employer has satisfied the requirements to establish the policy or work requirement is a BFOR. Typically, accommodation requires an employer to adjust working conditions so that the employee is able to perform the essential duties of the job. If the employer is unable to accommodate the employee to this point, then the burden of accommodation has been met.

Concluding Remarks:
Once a workplace standard is established as a BFOR, an employer is not required to accommodate. However, it is always advisable to explore alternatives to avoid unnecessary litigation. When exploring alternatives for accommodation it is essential that employers take an approach of good faith. This includes joint problem solving between the employee and considering doctor opinions if available. When in doubt, it is always best to seek the advice of an employment lawyer, as accommodation can present unique challenges that require legal expertise.

Employee Medicinal Marijuana Use and Workplace Policy: What Are the Implications?

| March 6th, 2017 | No Comments »

If an employer has a workplace policy that restricts or prohibits the use of medicinal marijuana this could in effect be grounds for discrimination under human rights law. Although the policy may not explicitly target an individual, or be discriminatory due to the language used, it is the effect of the policy that is important. If the effect of the policy results in an individual facing inadvertent discrimination, then the employer must accommodate up to the point of undue hardship.

For instance, suppose a workplace policy limits the use of medicinal marijuana to certain times during the working day. This may not seem discriminatory since the employer does allow those individuals that need the use of medicinal marijuana to do so; however, there may be certain individuals that are negatively impacted. Certain cases may involve an individual that deals with unpredictable chronic pain. If proper treatment for this individual involves the use of medicinal marijuana on an as-needed-basis, then any policy that restricts such use would in effect be discriminatory.

An employer would legally be legally obligated to accommodate in instances where individuals are adversely affected up to the point of ‘undue’ hardship. Simply, the employer must accommodate in a way that would allow an individual to perform the essential duties of the job unless doing so results in unreasonable hardship for the employer. ‘Undue’ hardship is an elusive standard in employment law so if you are faced with any concerns of medicinal marijuana use in the workplace and workplace policy, seeking the consultation of an employment law expert is necessary. Safety sensitive workplaces also add an extra element of complexity. This would require the employer seeking information on the effects the medically prescribed marijuana has on the individual in relation to their job duties and workplace safety, just as would be required for any other medically prescribed drugs. Again, the advice of an employment law expert is strongly recommended in these circumstances.