Reaching Out

Dear Friends,

We are back with another edition of Reaching Out. With 2020 behind us and some light at the end of the COVID-19 pandemic tunnel, we thought it appropriate to reconnect with our Social Services clients with a Spring edition of Reaching Out.

We chose not to publish Reaching Out last year as we know you faced an onslaught of information and updates related to changes in health measures, government orders and legislation. However, we feel the time is now right to update you on issues that are important in the sector.

Sean Reginio discusses the duty to accommodate employees and the issues that have arisen in the workplace as a result of the COVID-19 pandemic. He identifies questions you should be asking when faced with accommodation requests. Rebecca Liu discusses the obligation on service providers to accommodate customers and clients and sets out some helpful tips for assessing that obligation. Both articles highlight the importance of the procedural aspect of accommodation and being able to document the steps you have taken in considering your obligations. We also link to an article written by Lucy Wu for our recent FTR Now that reviews two Court of Appeal decisions which have a significant impact on pay equity obligations of employers in the social services sector.

As more and more people have the opportunity to receive a vaccine for COVID-19, we have provided a short overview of some of the issues you should think about if you are considering implementing a vaccination policy in your workplace.

We hope that you find these articles helpful. As always, if you have any comments, would like more information on any of these articles or have requests for articles in future editions, please do not hesitate to contact us.

Thanks and please stay safe.

Michael Smyth, Editor

The Evolving Duty to Accommodate During the COVID-19 Pandemic

By Sean Reginio

The COVID-19 virus, and the federal, provincial, and municipal rules responding to the virus, continue to evolve. A year into the pandemic, there remain many questions about steps an employer must take in order to accommodate an employee whose ability to work is impacted by COVID-19. In meeting their obligations under the Human Rights Code, employers are faced with three particular situations which present unique challenges for them during the pandemic:

an employee’s claimed inability to wear a mask or face covering
an employee sharing a household with someone who is immunocompromised
an employee’s childcare and eldercare obligations

This article will briefly address important human rights considerations for employers faced with each of these three scenarios, and conclude with a general guideline for accommodation during the pandemic.

Inability to Wear a Mask or Face Covering

There may be employees who assert that they are not able to wear a mask or face covering for various reasons, including as a result of medical reasons or creed. This presents a challenge for employers who have implemented mandatory mask requirements in accordance with public health directives. Further, Ontario employers are not entitled to require documentation substantiating that the employee falls within an exception to the requirement that they wear a mask or face covering.

An employer’s obligation to ensure the health and safety of all persons in the workplace remains in place despite the fact an employee may fall within an exception to the mask or face covering requirement. The employer should therefore consider several options, including:

Can social distancing be put in place and maintained so that the employee can work at a safe distance from others?
Can protective barriers such as plexiglass be installed?
Can the workplace be reconfigured so that their contact with others is limited?
Can the employee be put on a shift that minimizes contact with others?

If the answers to these questions do not identify an opportunity to return this employee to work safely, the employer must consider other accommodation, such as whether the employee can work remotely.

Immunocompromised Employees and Family Members

Some employees may seek accommodation because they have an immune system disorder, are immunosuppressed or they live with someone who is immunocompromised.

Where the employee is immunocompromised, employers should determine the employee’s limitations and restrictions and the possible accommodation within the workplace. In circumstances where an employee has identified a particular vulnerability to the COVID-19 virus, it is generally appropriate to request medical documentation solely with respect to the employee’s COVID-19-related limitations and restrictions.

An employee who shares a household or is in regular close contact with someone who is immunocompromised may request accommodation. In these cases, the employer has only a limited right to request documentation related to the immunocompromised non-employee so that it can determine the appropriate accommodations for the employee.

Family Care Obligations

When an employer receives a request for accommodation on the basis of family care obligations, the employer must determine whether there is a legitimate childcare or eldercare obligation that conflicts with the obligation to attend at work.

The employer is entitled to ask about the efforts the employee has made to find alternative means of caring for the family member, understanding that the employee’s options may be limited during the pandemic. Employers should consider the following:

many employees are legitimately concerned about sending their children back to daycare or other child care centres
many daycares are operating at reduced capacities
older family members may not be able to provide childcare due to increased risk of exposure to the COVID-19 virus
an employee may be the primary caregiver for an elderly parent who has been removed from a long-term care home.

During the pandemic, employers should adopt a flexible approach to accommodation where the appropriate information has been provided.

General Practical Considerations: Accommodating During the Pandemic

When an employee asserts that they are unable to attend work for a reason related to the pandemic, they may be entitled to take an unpaid Infectious Disease Emergency Leave (IDEL) under the Employment Standards Act, 2000 where the prescribed conditions are met. Where possible, and in circumstances where the leave will be of short duration, options that will maintain the employee’s salary during this leave should also be meaningfully explored. For example, an employee may elect to use vacation days or lieu time to maintain salary during a short leave that is taken for a reason related to the pandemic.

However, before concluding that a leave is the only option, employers should consider alternative work arrangements that may enable the employee to continue working, such as:

allowing employees to work from home where possible
implementing a modified work schedule
additional health and safety measures to minimize the employee’s exposure risk or other flexible options
a combination of the above efforts.

With respect to working from home, there is no obligation to create remote work that is unproductive.

When engaging in the process of determining whether an accommodation can be put into place, employers must remain mindful of their procedural duty. Employers should always engage in a thorough and flexible exploration of the potential accommodations that can be established. Even if it is ultimately determined that no safe accommodation is available, a failure to satisfy the procedural element of the duty to accommodate can lead to a finding that the employer has breached their duty to accommodate.

Accommodating Customers and Clients: Equal Treatment May Mean Different Services

By Rebecca Liu

Section 1 of the Ontario Human Rights Code (Code) provides that every person has a right to equal treatment with respect to services, goods and facilities without discrimination based on a prohibited ground. However, providing equal treatment with respect to services does not always mean providing identical services. Sometimes, where a customer or client is a member of a historically disadvantaged group, a service provider may need to provide its services in a different manner in order for that person to receive “equal treatment.” The accommodation does not have to be perfect, but it does need to be reasonable and a service provider must discharge its procedural and substantive duty to accommodate.

A recent decision, FT v Hamilton (City), provides an example of what a service provider should do when faced with an unusual accommodation request from a member of the public. In that case, the applicant’s litigation guardian requested that the City ban the sale of peanut products in its recreational facilities to accommodate his daughter’s peanut allergy. He claimed that the City’s decision not to ban such products prevented his daughter from attending the facilities or subjected his daughter to an increased risk if she attended the facilities.

The Human Rights Tribunal of Ontario dismissed the application against the City on the basis that discrimination against the applicant had not been established. There was no medical evidence that the applicant’s allergy symptoms were always anaphylactic or that casual contact of the allergen would cause an anaphylactic reaction. In any event, the Tribunal found that the City had not breached its duty to accommodate. The City adduced evidence that no professional allergy organization recommended the applicant’s requested accommodation (food bans) outside of daycare and school settings. Furthermore, the City took steps to address the matter. It undertook a pilot project to study the matter, stocked EpiPens in its facilities and trained its employees on the use of EpiPens.

Service providers should develop policies and train staff on how to respond to accommodation requests from customers or clients. When they receive such a request, they should take the following steps:

Inquire – Don’t be afraid to make inquiries to find out more about the accommodation request made by a customer or client. This is part of a service provider’s procedural duty to accommodate. What service does the customer or client want to access? What is preventing them from accessing the service? What are they asking for? Why are they asking for it?
Assess – Take steps to determine what the service provider can do to accommodate the needs of the customer or client. Do not apply a one-size-fits-all approach. Remember that an accommodation only needs to be reasonable; it does not need to be perfect.
Justify – Be able to explain the service provider’s decision on the accommodation request. If a customer or client will be given an alternative accommodation, ensure that the service provider can explain why the accommodation sought is unnecessary and why the alternative accommodation meets their needs. If a customer or client can’t be accommodated due to undue hardship, be able to substantiate why that person cannot be accommodated.

Even if you are not ultimately able to meet an accommodation request, taking the steps identified above assists you in satisfying the procedural obligations that you have under the Human Rights Code. Further, it may result in a recognition that you can, in fact, deliver your services in a different way to ensure that member of a historically disadvantaged group does receive equal treatment.

Ontario Court of Appeal on Maintenance Obligations for Employers Utilizing the Proxy Method

By Lucy Wu

In a pair of related decisions, the Ontario Court of Appeal ruled in favour of the bargaining agents for the Participating Nursing Homes in their dispute regarding maintenance obligations under the Pay Equity Act when using the proxy method of comparison.

In one of the decisions, the majority of a five-member panel of the Court agreed with the assertion of the Unions that in order to maintain pay equity, seeking employers are required to return to their proxy employers to obtain up-to-date information including job rates.

We review the two decisions and the significant impact they will have on employers which were required to use the proxy method to meet their obligations under the Act. Read full article here.

Vaccination Policies

By Michael Smyth and Siobhan O’Brien

With the supplies of the COVID-19 vaccine increasing, and broader distribution on the horizon, you may be considering introducing a vaccination policy.

In unionized environments, any vaccination policy will be subject to scrutiny based on the KVP reasonableness test applied by arbitrators. In developing a policy, employers will want to consider the workplace purpose of the policy as well as what is the least intrusive and effective means of achieving that workplace purpose. Whether or not the imposition of a COVID-19 vaccination policy would be upheld by a grievance arbitrator will depend on the evidence available to meet the standard of reasonableness. Factors that will be considered include the highly infectious nature of the COVID-19 virus, the particularly vulnerable high-risk populations who are supported by some in the social service sector as well as issues of bodily integrity, autonomy, and privacy.

In non-union environments, the KVP test and the corresponding reasonableness balancing is not applicable. However, even without the reasonableness test that applies in the union context, for non-union workplaces there are still legal risks that will impact on an employer’s decision regarding its approach to a vaccine protocol. Non-union employers may face challenges to a vaccine policy through constructive dismissal claims, human rights-related complaints, as well as claims related to bodily integrity and privacy.

Employers who want to implement a COVID-19 vaccine policy should consider:

To whom does the policy apply?
What is the purpose of the policy?
Does it balance the employer’s health and safety interests with the employee’s interests in privacy and bodily integrity?
Does it provide sufficient consideration for accommodation?
Are the consequences for failing to comply with it defensible?
Is it consistent with, and in compliance with, any collective agreement obligations?

If you have an existing policy you are considering modifying, or plan on creating a new policy, consider getting legal advice from your Hicks Morley lawyer to minimize your risks of grievances or human rights complaints.

If you have any questions or require further information about the issues raised in this Reaching Out, please contact any of the authors above or your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

Reaching Out – Fifteenth Edition