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| Daniel Dylan |
Of course, a common workplace accommodation provided by various employers to various employees is, itself, the opportunity to work from home. In such cases, generally speaking, the duty to accommodate reaches not only the home itself, but also generally reaches into the home, at least for essential job duties. Stated differently, under varying circumstances, an employer’s duty to accommodate essential job duties exists in the employee’s home workplace as much as it does in the employer’s workplace.
Nevertheless, given that many employees are currently working from home, and have essentially turned a portion of their homes — if not their entire home — into workplaces, the interesting question arises of how far the jurisprudence governing undue hardship may be flexed in order to meet the duty to accommodate in our current and new COVID-19 reality of “working from home.”
The sine non qua of the duty to accommodate is to preserve and maintain the dignity of each employee and to ensure full and equal participation by the employee at and in the workplace. As already settled law, all measures that would meet these objectives must be provided to the employee up to the point of the employer incurring undue hardship to do so.
Under the Ontario Human Rights Code, for example, an employer’s undue hardship may be made out if cost, availability of external funding or health and safety requirements and considerations make a given accommodation unfeasible. Nevertheless, if undue hardship is made out by an employer, generally the employer will still be required to provide the penultimate accommodation on the scale of possible accommodations — the one that does not result in undue hardship.
That said, a key responsibility of an employer in attempting to meet the duty to accommodate is individualization, meaning a given employer must attempt to accommodate a given employee’s individual needs, rather than through a “one-size-fits all” accommodation. In other words, each individual employee must be treated as an individual by their employer and accommodated on that basis.
Given the varying types of workplaces and the work conducted in them, an accommodation that enables an employee to work from home and perform essential job duties will of course be available in some employment contexts and relationships and not in others. In those employment relationships that make working from home feasible, or are already even part of an employee’s scope of responsibilities or accommodation, the employer may — subject to the undue hardship test — be required to make certain accommodations within that employee’s home workplace.
Given, however, that cost is a significant consideration in whether an employer can make out a case of undue hardship, with many employees working from home under the current COVID-19 reality, will employers be able to meet the duty of individualized accommodation to employees? As stated, under current law employers have the legal obligation to accommodate and so must do so. But whether they are able to is another matter.
The cost of providing an accommodation may act as defence to the duty to accommodate where the expense in providing the accommodation can be assessed, is related to meeting the required accommodation and is substantially prohibitive in respect of maintaining the employer’s business or enterprise and/or its viability.
But given the rapidity with which workplaces across the country were forced to adapt to legislative self-isolation and social-distancing edicts, and to implement work-from-home regimes (for which some employees may have had to purchase equipment or software) in order to maintain viability and meet contractual obligations, cost could become a far more significant consideration in an employer’s ability to meet the individualized duty to accommodate than might ordinarily be the case.
The real question is, it seems, whether — and if all, for that matter — the costs of fulfilling the duty to accommodate under COVID-19, will extend the boundaries of undue hardship as it is currently understood and applied by tribunals and the courts.
Of course, both the federal and Ontario government have developed economic relief packages for small businesses and other employers, but such outside funding may need to be directed elsewhere in order to keep the small business or enterprise afloat, that is, “viable.” This brings us back to cost considerations and the question, again, of whether the possibility that undue hardship test(s) may be further stretched to assuage new Canadian economic realities and the possibility of national and even global recessions is a real one.
A related question is whether, for example, going forward the Ontario Human Rights Tribunal will develop a policy or position to guide interpretation of the Code on these matters.
At the moment, however, there is little data available to quantify any practical answers to the question of how the undue hardship test has been or will be expanded or contracted to meet these new realities. A significant number of employees in Canada have lost their employment for various reasons relating to COVID-19, the impracticality of working from home among them, and it will be interesting to revisit these questions once data becomes available and/or there are legal challenges to employers’ actions which putatively have failed to accommodate individual employees.
Needless to say, COVID-19 continues to ravage the country and world, taking and ruining lives, but we might prepare for the possibility that such failure to accommodate challenges may be made and heard by tribunals and courts once the pandemic is better under control. Let’s hope that a sense of safety, security and normalcy returns to our lives before any such challenges might be heard.
Daniel Dylan is an assistant professor at the Bora Laskin Faculty of Law, Lakehead University, in Thunder Bay, Ont. He teaches animal law, contract law, evidence law, intellectual property law and Indigenous knowledge governance.
Photo credit / FANDSrabutan ISTOCKPHOTO.COM
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