After a recent Federal Court of Appeal ruling, employers are now faced with the responsibility of accommodating employee requests relating to childcare - providing it does not cause the employer undue hardship. This is the first time a ruling seems to clarify what employers’ obligations are when it comes to accommodation under the family status.
It all started with a human rights compliant filed by an employee of the Pearson International Airport in Toronto. Her employer denied her request to switch from rotating shifts to fixed shifts so that she could secure childcare for her two children (Source: National Post). In the end, the Canadian Human Rights Tribunal sided with the employee and ordered her employer to pay lost wages and provide additional compensation, finding that they could have accommodated her request without any undue hardship.
In his ruling, Justice Robert M. Mainville stated that: “Without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the workforce so as to make for themselves the lives they are able and wish to have.” He also concluded that these accommodations must be made only if there is a significant issue with childcare and a reasonable solution is available (Source: Toronto Sun).
What are your obligations?
Under provincial and federal human rights legislation, employees are protected from discrimination based on “family status”. Although this legislation has been in place for many years, it has always been a bit of a gray area for employers. In this ruling, the Court expressed its preference for a broader approach to family status discrimination while also emphasizing that human rights laws only protect an employees’ childcare needs not preferences. (Source: Mondaq).
According to the BCEA, the Court established a four-part test which an employee must meet to make a case of family status discrimination and trigger an employer’s duty to accommodate:
As Anna Aceto-Guerin explains:
Accommodation under any of the protected grounds is never a quick or easy answer. Every individual situation will be unique and, as an employer, you need to be able to show that you have assisted or supported the employee in any way you can. Your approach should be fair and equitable, providing the employee with reasonable time and notice to find alternative childcare options. The more documentation or evidence you can bring forward as an organization to prove you have fulfilled your due diligence, the better off you will be in a court situation.
What once was potentially considered a “nice to have” for employees has now become an employer obligation. Is the scope of an employer’s duty to accommodate becoming too much to handle? We’d like to hear from you! Please leave your comments in the section below.
Have a question about accommodation in your workplace? Our HR and disability management experts would be happy to assist you! You can contact us by email at email@example.com or by phone at 519-624-0800.
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Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently made a significant decision regarding entitlement limits for workplace mental stress claims. The tribunal declared that most of the legal restrictions placed on Workplace Safety and Insurance Board (WSIB) mental stress claims are unconstitutional and a violation of equality rights under section 15 of the Charter of Rights and Freedoms (Source: Mondaq).
Hicks Morley, a local law firm, explains this decision is likely to have a significant impact on employers of all sizes and will likely increase the number of claims filed by employees who allege that they have suffered mental stress as a result of the regular stresses of the workplace.
The case involved a nurse who alleged that she was subjected to abusive behaviour at work for a period of 12 years. She suffered mental health effects as a result of this abusive behaviour but her claim for benefits under the WSIA was repeatedly denied by the WSIB. The WSIB relied on the mental stress entitlement restrictions outlined in subsections 13(4) and (5) of the WSIA:
Subsection 13 (4): Except as provided in subsection 5, a worker is not entitled to benefits under the insurance plan for mental stress.
The worker then appealed the decision and the Tribunal held that the mental stress exception constituted an unjustifiable infringement on equality rights under the Charter. Based on that conclusion, the Panel declined to apply subsections 13(4) and (5) of the Act and allowed to worker’s appeal (Source: Gowlings).
Implications for Employers
Although this decision only has an immediate impact on this specific appeal, it will be highly persuasive in any future appeals regarding mental stress. Joseph Cohen-Lyons from Hicks Morley explains that, from the Tribunal’s perspective, the WSIA no longer limits entitlement for mental stress to traumatic mental stress claims. Chronic mental stress claims are now eligible for compensation.
It is important to note, however, that until such a decision becomes the subject of a judicial review or the government decides to amend the legislation, there will remain a level of uncertainty as to whether such a claim or appeal for mental stress benefits will succeed (Source: Mondaq).
Regardless of this uncertainty, employers will still be under increasing pressure to limit and address the causes of workplace stress as a result of this decision. Employers should be reviewing their current practices, policies and procedures in order to ensure they are protecting themselves from potential mental stress claims. Documentation is key throughout this entire process (Source: Hicks Morley).
Clear Path’s team of disability management experts and medical professionals is specifically equipped to assist employers through the WSIB claims management and appeal process. If you have a question about a specific claim, including mental health, please contact Anna directly at firstname.lastname@example.org or 519-624-0800.
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Last month brought some tragic reminders of the reality of workplace violence and harassment and the obligations that employers have under Ontario’s Bill 168.
On April 30th, a former employee was arrested after an act of workplace violence occurred at the Western Forest Products sawmill in British Columbia. Four employees were shot in the incident, resulting in two deaths. As the story unfolded, it was also revealed that the suspect was in a tense dispute with management over severance pay. Investigators are still trying to determine if the gunman had shown any previous signs of violence and what the relationship was between those involved in the shooting (Source: Vancouver Sun).
Another story that hits closer to home was a multiple stabbing that occurred in a Toronto workplace on April 9th. In this situation, an employee allegedly reacted to the termination of his employment by pulling a knife during the dismissal meeting and stabbing four of his co-workers. According to the detective on scene, two of the victims were believed to be the attacker's superiors and were in the process of firing him when they were stabbed (Source: CTV News).
In both of these situations, the act of violence was carried out by a former employee reacting to their termination or severance pay. As extreme as these recent examples are, we cannot overlook the reality of workplace violence and harassment. Bill 168, an Act introduced in 2010 to amend Ontario’s Occupational Health & Safety Act, places an explicit obligation on employers to take steps to protect their employees from incidents of workplace violence and harassment.
What must you do to comply with Bill 168?
How Clear Path can help with Bill 168
As a business owner, the process of complying with these new legislative obligations can be an unwelcome and frustrating experience. This is particularly true when you are left to implement these new requirements without much government support.
Here’s where Clear Path comes in. We offer a number of different solutions to assist you on the road to full compliance with Bill 168. These solutions include:
In addition to these solutions, we also offer a Bill 168 Do-It-Yourself Package which contains all the tools needed to become compliant within your organization. The package also includes 2 hours of consulting time which can be used for any of the above items. For more information, please visit www.clearpathemployer.com/bill-168-diy-package or call into our office at 519-624-0800.
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