Assisting Employees with Health Conditions in Returning to the Workplace – Is Hybrid Work Better?
As an employer, you will have a number of employees with disabilities or health conditions that may need additional considerations when thinking about return to the workplace. In fact, a recent article by CNN indicates that many individuals with disabilities have thrived by working from home (CNN, 2021). Other employees have had more challenges with technology and lack of coaching by the manager. Hybrid work options may be the answer to your employees’ challenges, depending on their unique situations and the requirements of their role.
The Employee with Health Conditions or Disability
Consider that certain individuals may be at greater risk of contracting COVID-19 or of having more severe complications from COVID-19. According to the Government of Canada, individuals at higher risk include older adults, people with weakened immune systems, and people with medical conditions, including heart disease, hypertension, lung disease, diabetes, and cancer. These health conditions may compromise the employee’s immune system if they return to the in-person workplace, so it important to understand the risks and plan these employee’s working models accordingly.
Employees with disabilities may also experience health challenges that make it difficult for them to complete the essential demands of the job while working in the office. Disability is defined by the Ontario Human Rights Code as any degree of physical disability, a condition of mental impairment, a learning disability, a mental disorder, or an injury or disability for which benefits were claimed or received.
With the onset of COVID-19, there have been many concerns about how to determine the most reasonable accommodation in the workplace. When you do have an employee who is at increased risk for severe illness as defined by the Centers for Disease Control (CDC) or Public Health, or who have other risk factors, they may seek the modifications to their work environment or other reasonable accommodations. In the case of employees who are at risk of complications related to COVID-19, you may consider strategies such as alternative work assignments, like telework, alternative work locations, reassignment, or social distancing measures. Each accommodation should be assessed individually.
- Accommodation measures must be taken unless no further accommodation is possible without imposing undue hardship.
- Employers and unions must be sensitive to the various ways that individual capabilities may be accommodated.
- Workplace standards that unintentionally distinguish among employees on a protected human rights ground may be struck down or modified. Employers must build liberal concepts of equality into the workplace.
- Courts, labour arbitrators, and human rights tribunals are to take a strict approach to exemptions from the duty to accommodate. Exemptions are to be permitted only where they are reasonably necessary to the achievement of legitimate business-related objectives.
- The employer must not rely solely on the information provided by the Workers’ compensation board, CPP, or other outside third-party carrier’s medical reports to determine if accommodation is appropriate. As observed in the Air Canada (1998), Pharma Plus (1993), and Canadian Pacific (1996) cases, arbitrators do not accept that WCB is the final arbitrator of the employer’s duty to accommodate.
- The employer is NOT required to create new positions. The employee in any position has to be able to perform the essential duties of the position. This is demonstrated in the Holmes v. Attorney-General of Canada (1997 ) case, where the court stated that the undue hardship standard:
“Does not require that an employer act as a placement officer or create a new position expressly for the disabled employee comprising new duties that were previously non-existent and that do not suit its need…. The employer’s obligation is to make a genuine effort to accommodate an employee, efforts that are consistent with the type of work for which the worker was hired.”
6 Steps to Accommodation
- Identify the protected area for accommodation and the functional limitations that must be accommodated
- Identify the outcome of the job and the essential tasks of the job
- Identify the gaps between functional capabilities and job demands
- Can an accommodation allow an employee to achieve the outcome of his/her own job?
- Are there any other available positions within the organization that the employee can do with or without accommodation?
- Do the accommodations cause “undue hardship” for the company?
Ensure that the steps are documented completely including how each step was achieved and what resources were used to achieve each step.
The following steps should be taken with all long-term accommodations to ensure legal compliance and due diligence:
- Ensure that there is a protected area for protection under the Human Rights Code that requires accommodation.
- Explain that an employee may initiate a request for reasonable accommodation orally or in writing.
- Explain how a request for reasonable accommodation will be processed and from whom the individual will receive a final decision.
- Designate a time period during which reasonable accommodation requests will be granted or denied, absent extenuating circumstances. Time limits for decision making should be as short as reasonably possible.
- Explain the responsibility of the employee to provide appropriate functional information if the information submitted does not clearly explain the nature of the disability, or the need for the reasonable accommodation or does not otherwise clarify how the requested accommodation will assist the employee to perform the essential functions of the job.
- Explain the employer’s right to have information reviewed by an accommodation expert of the employers choosing at the employer’s expense.
- Provide that reassignment will be considered as reasonable accommodation if the employer determines that no other reasonable accommodation will permit the employee to perform the essential functions of his or her current positions.
- Provide that reasonable accommodation denials be in writing and specify the reasons for denial.
- Ensure that systems of record keeping track the processing of requests for reasonable accommodation and maintain the confidentiality of medical information received in accordance with applicable law and regulations.
What Can Gowan Consulting Do to Assist?
You may wish to listen to our recorded Accommodation Conversations webinar. This will help you to understand some of the concerns and approaches for accommodation in the workplace.
- Arrange for an Accommodation Assessment.
- Join our membership.
- Attend Accommodation and Hybrid Work Webinar.
- Contact Us to discuss your complex accommodation file.
“Remote work made life easier for many people with disabilities. They want the option to stay,” Neelam Bohra and AJ Willingham, CNN, August 10, 2021, https://amp-cnn-com.cdn.ampproject.org/c/s/amp.cnn.com/cnn/2021/08/10/health/remote-work-disabilities-pandemic-wellness-trnd/index.html