Can you let someone go while they are on parental leave?
If an employee needs to change their hours in order to pick up their children from daycare, do you have to accommodate them?
If your driver has a prescription for medicinal cannabis, do you have to let him work?
How long do you have to hold a job open for an employee that has been on medical leave for months or years?
These are just some of the issues that confront employers when it comes to human rights.
Human Rights Legislation
Every jurisdiction has its own Human Rights legislation. They are largely the same, and they all prohibit employers from unlawfully discriminating against their workforce on the basis of specified grounds. In Ontario, those grounds are:
- place of origin,
- ethnic origin,
- genetic characteristics
- creed (religion)
- sexual orientation,
- gender identity or expression
- record of offences,
- marital status,
- family status, or
- receipt of public assistance
- a conviction for which a pardon has been granted or a record suspended.
This right to equality spans across all aspects of the employment relationship, including hiring, workplace environments, dress codes, promotions, and dismissals. Any workplace rule or decision that adversely impacts an employee due to a prohibited ground is a breach of their rights.
And it is critical to understand a breach can occur even if the prohibited ground is one small part of the reason for the decision, that is a breach. You may have plenty of good reasons to dismiss an employee, but if the fact that they take a lot of time off to look after their kids entered into the thought process, then you will be exposed to liability.
Direct and Indirect Discrimination
Most of us know that employers cannot, except in unusual circumstances, refuse to hire, or make termination decisions, based upon protected grounds such as religion or sexual orientation. That is direct discrimination.
However, indirect discrimination is also prohibited. For example, a job posting that says “No Jews will be considered” is direct discrimination. A job posting that says applicants must be available to work on Saturdays may indirectly discriminate against the same group, since some Jews cannot work on Saturday since they observe the Sabbath. Neither form of discrimination is lawful.
Employers’ Duty To Accommodate
The right to be free of discrimination also includes a duty to accommodate.
Employers are often challenged by the duty to accommodate. This applies to a wide variety of situations, including disability, childcare obligations, and, as has recently been featured in the media, marijuana use. The end result is that employers may have to incur some cost, or hardship, as a result of this duty.
That said, many employers underestimate their rights and also fear that if they ask for too much information, they will be breaching the employee’s privacy. As a result, they accommodate when they don’t have to, or fail to find more efficient methods of accommodation. For example, an employee may ask to be off work, but it may be viable to have them work with modified hours or duties. You do not have to accept what the employee tells you without verification, and you do not have to accommodate as they ask.
You should have a standard policy in place to respond to all requests for accommodation. The best way to expose yourself to liability is to refuse a request for accommodation without even considering it.
How we can help with Human Rights and Accomodation in the workplace
We will help to design policies and procedures that do not breach applicable legislation. We will also coach you on hiring processes and other procedures to ensure that you do not inadvertently breach your human rights obligations. And we will make sure that you know how to respond to situations, such as requests for accommodation, in a way that does not expose you to liability.
Lastly, we will defend you if you are faced with allegations that you violated a human right.
We want to be your Trusted Advisor, your Chief HR Law Officer, your business partner. Let us be part of your team, so that we can look after your employment law issues, and you can focus on your business.