How has the 'duty to accommodate' changed since the pandemic?

Employment lawyer addresses nuances around flexible hours, remote working and whether HR leaders can recall staff to the office

How has the 'duty to accommodate' changed since the pandemic?

As the pandemic rages on, employers are faced with yet more questions around flexible hours, remote working rights, and whether or not they can legally recall employees to the office. The nature of accommodation in Canadian organizations has shifted dramatically since COVID, bringing with it new concerns and queries for HR leaders.

HRD spoke with Ryley Mennie, principal at Miller Titerle Law Corporation and speaker at our upcoming Employment Law Masterclass, who revealed just how much accommodation has evolved and what sorts of issues employers are grappling with in 2022.

“It’s really it's become more of a nuanced process,” Mennie told HRD. “The circumstances related to the pandemic has made accommodation requests into a more complex undertaking - where before it was more predictable although always flexible and case specific. Now, the goalposts have moved. The framework for what constitutes a typical workplace operational structure has changed – and with that so have the rules of accommodation.”

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One of the main issues pertaining to accommodation are the new remote and hybrid working models. Many organizations pivoted to WFH models in 2020. And while it’s certainly saved many businesses and prevented job losses throughout the pandemic, it also presented its own unique set of challenges when it comes to returning to the workplace. For employees, adjusting to that ‘at home’, solitary way of working to an in-person, office model can be difficult.

“Here we see different variants come into play,” added Mennie. “Employers are having to to re-emphasize the need for people to avoid contact, looking at their own health and safety legislation, and ensuring social distancing. As such, it becomes a bit more difficult to set the parameters.”

Another major concern when it comes to accommodation is the impact of COVID on childcare. The pandemic forced schools to close, meaning employees with children had to balance the struggles of home-schooling with their daily working routine. Employers are looking at how they need to accommodate requests around flexible hours and shifts – but there’s no one rule for all. As Mennie told HRD, everything is looked at on a case-by-case basis, meaning it’s not so clear cut.

“It’s not direct,” explained Mennie. “It's an open question, in certain cases, whether the duty to accommodate is triggered. The lines are not quite clearly as drawn. For instance, say you have employees who have vulnerable family members - that makes it trickier in terms of how to approach this from a strict legal analysis. And then, operationally, how to keep an organization running on an even keel when accommodations are being made.”

Overall, the accommodation process has become more modulated since the pandemic – and is likely to remain so while we’re living with restrictions. However, as Mennie told us, employers and employees are finding the best solution for accommodation issues between them – both parties being empathetic and compassionate to the other’s needs.

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“In my experience, most of the workforce has been quite flexible in their approach. Employers have become better at understanding that there’s normally some external context that needs to be taken into account when dealing with these requests. I don't see a lot of employees, though there are definitely a few, strictly asserting very bright line interpretations of their rights and expectations as part of the accommodation process. Instead, people are being quite flexible and trying to work with their employer to find the best solution for everyone.”

To hear more from Mennie and other employment law experts, register for our upcoming Employment Law Masterclass here.

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