The issue of employee accommodation is a touchy one for business owners and managers across Canada. While most are eager to work with employees who require some form of workplace accommodation under human rights legislation spelt out the provinces, they struggle to do so as the scope of protected rights expands, often with some ambiguity.
Businesses already accommodate staff due to their religion, age, disability or one of the other protected grounds, but don’t be surprized if vegan or yoga get tacked on to that list. It’s not as far fetched as it sounds. In December, for example, the Ontario Human Rights Commission updated its definition of a creed’ under the province’s Human Rights Code.
As the OHRC explained in a statement:
Creed may also include non-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life. The following characteristics are relevant when considering if a belief system is a creed under the Code. A creed:
¢ Is sincerely, freely and deeply held
¢ Is integrally linked to a person’s identity, self-definition and fulfilment
¢ Is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices
¢ Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence
¢ Has some “nexus” or connection to an organization or community that professes a shared system of belief.
This broadened interpretation could have significant implications for employers across Ontario—and Canada, if other provinces follow Ontario’s lead.
Vegan rights advocates, for example, have argued that this revised definition now requires employers to accommodate the needs of ethical vegans in the workplace. That could mean that employers would be compelled to provide vegan options at on-site cafeterias, for example, or alter uniform requirements if a vegan employee refused to wear leather shoes as part of a uniform
“This change is important for ethical vegans, because in instances where accommodation is required they’ll have a legal right to enforce it,” Nick Wright, founder of animal rights group Animal Justice, told a Toronto newspaper after the OHRC’s revised definition was made public.
But is he correct in that assumption? The short answer is: maybe. Employers have always been obligated to accommodate employees’ self-defined creeds. The only change is that the definition of the term creed’ has broadened. Ultimately, the job of clarifying the scope of those accommodation requirements, at least in this case, will rest with the Ontario Human Rights Tribunal, which has yet to rule on the matter. It may seem far-fetched, but this revised definition could mean that employers will be forced to not only accommodate ethical vegans, but a host of other creeds, as well.
Could an employer be obligated to accommodate a yoga-practicing employee, say, by providing time off or space in the workplace to participate in classes if that individual argued that yoga was a creed that influenced their life and world view in a significant way? Possibly. The exact extent to which employers must go to accommodate an employee’s creed remains unclear.
What we know is that current OHRC Policies clearly state that employers must make attempts to accommodate an employee’s creed—even if the employer feels the practice is objectionable, causes them inconvenience or impacts workplace morale. In cases where an organizational requirement requires employees to comply with specific workplace standards or practices—when health and safety is at issue, for example—the employer is still required to explore options for accommodation.
The question you may be wondering at this point: What are the limits to those obligations? On this, the courts and human rights tribunals have been quite clear.
The widely accepted rule is that employers have a duty to accommodate employees to the point of undue hardship. The scope of that obligation is typically limited to the point where the act of accommodation could potentially damage or cripple the operations of the organization in question. In other words, if accommodating a person’s creed could bankrupt a business, the courts don’t expect an employer to compromise their organization’s bottom-line success. However, employers are required to consider all reasonable measures to accommodate the needs of their employees, even if it means incurring direct or indirect costs.
Sounds like a potential nightmare, right? Not so fast. Even with this expanded definition of creed’ and other recent developments such as the broadening of family status obligations under the Human Rights Code, there are ways to accommodate employees without impacting the performance of your business.
In my next column, I’ll explore the issue of accommodation in detail by outlining tactics to proactively manage the situation, maintain employee engagement and avoid potentially costly legal pitfalls.
Laura Williams is an employment lawyer and founder of Williams HR Law in Markham, Ont. She has more than 15 years experience providing proactive solutions to employers aimed at reducing workplace exposures to liability and costs that result from ineffective and non-compliant workplace practices.
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