The Duty to Accommodate in the Workplace: Analyzing Relevant Legislation and Legal Precedents in Canada
Navigating organizational challenges in the context of legislative obligation is a nuanced task that carries legal risks which ought to be mitigated. Understanding the relevant legislative context and legal precedents is crucial in determining an effective path forward that paves the way for sustainable organizational success while balancing stakeholder interests. This article provides a blueprint for approaching the duty to accommodate in accordance with the Canadian legislative landscape.
Abstract
Existing company culture can create barriers to making positive changes, even when these shifts align with long term organizational goals and legal obligations. The pressures of navigating accommodations may fall disproportionately on certain stakeholders, such as frontline managers, who do not possess the skills, training, and knowledge to successfully manage these processes without necessary supports. This case study takes an analytical look at the pressures being navigated by a given organization, the relevant Canadian legislation, and legal precedents, all of which create the context for this organization to move forward in a way that minimizes risks and protects their assets (which includes a resilient, engaged workforce). Within a unionized environment, there are extra layers to navigate as there may be agreement wording that impacts the ability to make changes; this highlights the importance of including relevant stakeholders throughout the change process (which in this case includes union representation—in a non-union environment the same concept applies to incorporating relevant stakeholders respective of the context). This article concludes by exploring recommendations for productively managing this request for accommodation given the context within this organization, which is ultimately nuanced and has no singular “right” answer. This provides a blueprint for other organizations facing challenges regarding accommodation. The overall encouragement from this article is to intentionally asses the circumstances and possibilities for moving forward in a way that benefits all stakeholders, including the worker.
Introduction
Workplaces are filled with opportunities for conflict resolution and negotiation, ranging from interpersonal issues to matters of greater consequence which are influenced by legislation and legal precedents—such as accommodation (PCU-WHS, 2021). This “conflict-resolution” role often falls to front-line leaders (such as managers and supervisors) who may not have adequate training to effectively complete this task, or the necessary education surrounding legal obligations and ramification to inform their decision surrounding this process (PCU-WHS, 2021). While there are several approaches available to a leader managing conflict, it would be wise to consider a strategic approach which creates the highest likelihood of aligning with workplace objectives (PCU-WHS, 2021).
Background
This company has been operating with a more traditional culture until now, honouring long-time employees, and not making exceptions to a longstanding rule for working the Saturday overnight shift. In the process of onboarding new employees, the existing culture has been challenged to see a different perspective. One of the new employees has made a request for accommodation on religious grounds which will preclude them from the longstanding rule of working this Saturday overnight shift (which they would otherwise work approximately once per month). While accommodating this request has the potential to create a significant conflict with existing staff, there is a possibility of legal consequences and other complications if the accommodation request is denied. Even if it was not intentional, the company has made a bid for change by increasing diversity in the workplace; however, there is not yet a functional structure to build upon. The organization requires clear policies and procedures which will become the framework for lasting and intentional change which allows the workers and business to thrive in the context of multi-faceted logistics and real-world pressures.
Conflict Resolution: The Basics
In The Conflict Resolution Toolbox: Models and Maps for Analyzing, Diagnosing, and Resolving Conflict, it outlines that in simple terms, conflict resolution can be distilled into two processes:
1. finding the root of the conflict, often referred to as diagnosing or assessing conflict
2. enacting the best approach to meet desired objectives in achieving a resolution (Furlong, 2005).
The two steps of the conflict resolution process are in a sense up for interpretation; the application can be as highly varied as the context of the circumstances and relevant stakeholders.
Primary Concerns
This request for accommodation creates multiple pressures for the manager. While the primary concerns are all priorities, the manager must find a way to balance the demands using a leadership approach. The primary concerns facing the manager:
workplace operations and logistics
meeting legal obligations
maintaining productivity throughout changes
aligning with the union and bargained agreement
team morale and ability to work cohesively
Additional Considerations
The right policies and approach can prevent a conflict from escalating to a more involved level of resolution, such as mediation or adjudication, where the result might not necessarily have a positive impact for the stakeholders.
While the current request for accommodation is on religious grounds, it is possible for accommodation requests to be made in light of other circumstances. The publicity of the bid for change from the employee requesting accommodation may increase the knowledge of the possibility for accommodation not only on religious grounds, but for accommodation related to health or disability issues.
It would be wise for the organization to have a current, relevant, and functional policy or procedure in place to act as a working document and provide the means to deal with future accommodation requests.
Why Accommodate?
It is the employers legislated obligation to accommodate; in the works, An Examination of The Duty to Accommodate in the Canadian Human Rights Context it states, “There is rarely a precise formula for applying the duty to accommodate to any given situation. It calls upon the parties involved to be creative and sincere in negotiating and finding solutions” (Library of Parliament, p. 3, 2020). All stakeholders must take accountability for their part in the process. Cultivating a diverse workplace benefits everyone and is also the responsibility of everyone, including front-line workers (i.e. the coworkers and peers of the employee requesting accommodation). This also means that the accommodation should be taken seriously by all key stakeholders, including management and leadership.
Legal Obligation
It is important to recognize that if the duty to accommodate (DTA) is not satisfied, there are possible ramifications for the organization (Lynk, 2008). In the works, The Duty to Accommodate in the Canadian Workplace: Leading Principles and Recent Cases it states, “When assessing the validity of a challenged standard or practice, a legal decision-maker is required to ask the following three questions:
I. Has the employer adopted the challenged standard or practice for a purpose rationally connected to the performance of the job?
II. Has the employer adopted the standard in an honest and good faith belief that it is necessary to fulfil the work-related purpose? And
III. Is the standard reasonably necessary, in that it would be impossible to accommodate an individual employee without imposing undue hardship upon the employer?” (Lynk, 2008, p. 6).
In applying these three questions which were set as a precedent in the Meiorin decision, it is unlikely that the only possible way to maintain the integrity of the business and operations is for this one employee to work this single shift, once per month (Lynk, 2008).
Union Considerations
While the DTA to the point of undue hardship applies to the organization, the union must also be taken into consideration (Lynk, 2008). Any decisions made through the DTA must not substantially intrude on the rights of the coworkers, although it may supersede the collective agreement (Lynk, 2008). It would still be important to have the union representative aligned with the plan of action, and this particular overnight shift might have to do with a bargained agreement regarding weekend time (ensuring all employees get some weekend time off). For a multitude of reasons, including the union perspective on any proposed changes will offer important information on how to proceed. This perspective may prove extremely valuable, and ultimately it is crucial that the resolution process and outcome does not create friction with the union or compromise the integrity of the bargained agreement. This important concept goes beyond unionized environments, as it highlights the reason why it is crucial to carefully consider which stakeholders are relevant in creating an effective path forward.
Opportunity for Proactivity
If it is obvious other employees will be asking for accommodation regarding this particular shift, it creates an opportunity to make a proactive change or at least collect the necessary data for a comprehensive assessment of the situation. One possible option would be to create a simple survey to see what quantity of the staff would be looking to pursue relief from this shift if it were an option to opt out on religious grounds. This would create an opportunity for the workers to feel like their voices are being heard in the change process. If the employees are involved in the change, and perhaps even part of the collaborative brainstorming process for creating solutions, they may be more likely to support resultant changes (Burton, 2008). Complying with legislation not only mitigates the risk of legal consequences, but has the potential for creating a positive impact on the organizational culture and overall morale. In this case, if many of the employees do not want to work this shift for bonafide reasons such as religious beliefs, this experience likely has some sort of impact on their job satisfaction and productivity levels. It’s possible that addressing the need for accommodation will create a positive ripple effect amongst affected workers upon seeing how leadership cares about their perspective and considers the workers may have valuable input on how to solve a problem that is impacting them directly.
Recommendation
There is a lot to consider in order to promote successful accommodations regardless of the context. Here is a basic guideline for getting started:
Identify, develop, and resource the right stakeholders (i.e., a committee). In order to be successful, this process requires invovlement from the right people. Building the right team and giving these stakeholders the time and backing to be successful is a crucial first step.
Review relevant policies and procedures to ensure they align with the current company goals. This is an opportunity to augment the policies and procedures as needed to provide the necessary support in promoting a favourable outcome. Developing the right organizational policies provides a framework that can be leaned on time and again, providing consistentcy throughout all levels of the organization.
Assess reasonable possibilities for accommodation requests which are founded in bonafide reasons (such as the example in the case study of religious grounds). Even in circumstances where it is anticipated that conflict may arise as a result of granting an accommodation, this information can be used as feedback to determine a successful course of navigation in an iterative process.
Ensure consistent messaging at all levels of the organization, including throughout the accommodation initiative, relevant policies, and training for key stakeholders. Inconsistent information can make initiatives feel disingenuous or give workers the impression that leadership (for example) doesn’t truly care. This tone of actually caring can be what sets the foundation for a successful culture shift to promote longevity of success.
Address where frontline staff may be faced with decisions that are beyond their level of skill, training, and expertise by providing support and resources to fill these gaps in understanding and performance. Utilize the committee to offload as many decisions as possible so that the frontline managers/supervisors are not faced with excessive pressure in navigating the accommodation process without the necessary support to be successful. Determine where there are gaps in the ability to successfully manage challenges and provide the necessary supports to promote success.
Conclusion
Navigating a request for accommodation that poses a logistic challenge is a multifaceted process which requires understanding of the relevant legal landscape. Forging a successful path forward will likely require the insight of all relevant stakeholders—which may look extremely different in a small business versus large enterprise. Effective conflict resolution, in this case granting a request for accommodation, has the potential to enrich the workplace in a multitude of ways. It is important that leadership considers the bigger picture and desired outcomes when creating a strategy for resolving conflict in order to align with overarching objectives of the organization. Frontline staff are in a particularly demanding role that faces multiple pressures when it comes to accommodation, making it important to ensure that sufficient training has been provided to these key players. Frontline staff are often tasked with finding a way to balance multiple priorities in order to facilitate a successful outcome—and adequate support should be provided in order to achieve this shared goal. Ultimately, a successful resolution process follows a similar formula to most work-health initiatives: creating and executing a stategy given the pertinent data, followed by monitoring to evaluate the effect of the intervention in order to adjust as needed. Recognizing that “getting it right” is an iterative process can remove the pressure to achieve a perfect outcome on the first try, and reinforce the ability to fine-tune strategies for long-term success as more feedback data is available over time.
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References
Burton J, (2008). The business case for a healthy workplace. IAPA.
Furlong, G.T. (2005). The conflict resolution toolbox: Models and maps for analyzing, diagnosing, and resolving conflict. Chapter 1 (pp. 1-18). John Wiley & Sons Canada, Ltd.
Library of Parliament. (2020). An examination of the duty to accommodate in the canadian human rights context: Background paper. (Revised by Barnett, L., Mason, R., Nicol, J., & Walker, J.) Publication No. 2012-01-E. Parliamentary Information and Research Service.
Lynk, M. (2008). The duty to accommodate in the canadian workplace: Leading principles and recent cases. Ontario Federation of Labour.
Pacific Coast University for Workplace Health Sciences (PCU-WHS). (2021). Session 8 study guide: Leadership and conflict management. WHDM 407 Conflict Resolution and Negotiation in the Workplace. PCU-WHS.
Tompa, E., Oliveira, C., Dolinschi, R., Irvin, E. (2008). A systematic review of disability management interventions with economic evaluations. Journal of Occupational Rehabilitation, 18. doi:10.1007/s10926-007-9116-x
