Duty to Accommodate: The Saskatchewan Code

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Table of Contents

Introduction
Details of the legislative requirements
Conclusion
References

Introduction

The Saskatchewan Human Rights Commission created a code designed to protect employees from discrimination at the workplace. According to this legislation, employers have a duty to accommodate, where accommodation refers to reassignment of a worker or modification of his or her duties. The duty to accommodate as well as the return to work policy affects all categories of employees defined as protected; these include persons with disabilities, people with divergent religions, ancestry and family obligations.

Details of the legislative requirements

The Saskatchewan Labour Standards Act, section 44 states that employers have a duty to accommodate workers in order to eliminate discrimination unless undue financial, safety, health and hardship costs will stem from the accommodation (Saskatchewan Human Rights Commission, 2012).

In order to show that a company has followed these regulations, it needs to document the process of considering the accommodation request as well as the actions taken. In this legislation, accommodation should not revolve around employee preferences; instead, it should be done in order to eliminate unreasonable barriers at work.

When considering accommodation, an employer needs to keep in mind certain triggers that could necessitate it. If an employee experiences something that changes his or her ability to carry out his duties, then the duty applies.

For instance, the person may be a new mother or may have changed religions and these alterations may affect the person’s ability to work conventionally. Alternatively, a company may introduce new workplace policies that affect the person’s ability to get work done at certain times.

The Saskatchewan Code requires managers to accommodate if the return to work policy has led to discrimination against employees from any of the prohibited groups. In other scenarios, it could be that the individual has developed a medical condition that requires changes in the way the person works. Management should consider such possibilities prior to accommodation.

Employers may also consider performance issues before accommodating. This means that they do not have to wait for requests from employees to do the same. For instance, they may get feedback from other workers that a colleague is having difficulties with work. If an employee’s performance levels drop or the person behaves erratically, then an employer has the obligation to accommodate him or her.

Managers ought to approach such individuals about the need for accommodation. If the person refuses to pursue the matter, then a business person must document all the steps he or she took into order to abide by the Saskatchewan Labour Act. Therefore, management has the responsibility for identifying barriers and looking for options to eliminate them. Additionally, management should respect the right to privacy or confidentiality.

It is not necessary for management to know all about all the details of an employee’s medical problem. All that counts is information about how one’s health condition will affect work. Furthermore, information such as employees’ family situations should not be disclosed.

In essence, an accommodation request may not necessarily be written down, but it can be communicated to management clearly. Additionally, managers must familiarise themselves with the needs of employees if accommodation is necessary. Thereafter, management should organise resources and plan for ways in which accommodation can be facilitated.

During this process, management will need to buy adaptive equipment or make other adjustments. It is imperative to have a plan if the accommodation will be long term. In such a scenario, parties involved should communicate frequently. Further, management should stay updated on the health status of the employee involved.

Employees must play their part in this arrangement. They are expected to formally request for accommodation when something happens to affect their work, or if they become a member of one of the protected groups. They are also expected to work hand in hand with their employers and realise that they may not always get what they demand.

Cooperation may be in development of a work plan or in proposing possible solutions for accommodation. Additionally, workers’ unions are obligated to cooperate with employers in the process of accommodation.

Employers are must make all the arrangements necessary in order to facilitate a return to work plan. If a worker is to be reasonably accommodated prior to his or her return to work, then an employer can offer him the same job with certain modifications, such as the schedule or duties involved. Alternatively, return to work can come about by offering an employee a different job. Finally, this policy can occur by giving the worker a different job in a modified form (Association of Workers’ Compensation Boards of Canada, 2011).

This legislation has its limits regardless of all the things a manager can do. Employees who have been continuously absent from work, and are unlikely to return are not covered in the Code. In this regard, an employer should apply a reasonableness test. The legislation does not apply when management must experience undue hardship in order to accommodate.

If accommodation will result in considerable financial costs, then an employer may forfeit this duty. Additionally, if appreciable interruptions to business will occur, then the duty becomes non obligatory. Furthermore, an employer should not accommodate one worker at the expense of infringing on other employees’ rights.

If the accommodation will undermine the safety of the concerned worker or others, then it should not be implemented. In the event that an employee claims discrimination due to the failure to accommodate, companies can be exempted if they use the bona fide occupational requirement argument. Certain professions require employees to possess particular health conditions before they can be fit enough to engage in it.

For instance, drivers with a poor vision cannot perform well. Therefore, if an employer can prove that the employee lacked the bona fide occupational requirement, then the court will excuse him or her from discrimination. For this defence to apply, a manager must show that the standard (rule) was related to the concerned function, that it was done in good faith, and that lack of the standard would cause undue hardship (MacDonald, 2009).

Impact of the legislation on accommodation and on return to work

Since the Code recognises ill or injured employees as one of the categories that are entitled to these modifications, employers have had to do as much as they can to accommodate workers. They have given employees leave of absence when illnesses or accidents occur, regardless of where the accidents took place.

Additionally, when an employee recovers from an illness, an employer must leave room for a gradual return. This has changed the way things get done at the workplace because now companies must take time to allow a transition back to work. They must also dedicate resources for this process.

If an employee has not fully recovered, his manager ought to change work shifts or rearrange job duties for the same to occur. Therefore, this legislation has affected the workplace by encouraging greater flexibility during company time. In certain scenarios, a person may have a permanent physical disability because of their illness. Therefore, a place of work needs to change work conditions so as to integrate injured workers. These requirements have altered what managers need to do in order to stay ahead.

Pregnant workers or individuals with family obligations are also entitled to some alterations in work. Employers have brought together work bundles that are in line with the employee’s needs. Sometimes, it may be necessary to transfer the employee to a new position or alter conditions of work. For example, a pregnant worker should not do a lot of manual work or heavy lifting; an employer may have to give her a seat even when similar workers do their job while standing.

Therefore, management needs to lighten their duties at this time. When delivery time approaches they should get maternal leave; fathers should also get paternal leave. If someone has children, he or she must be granted days off to meet those obligations. A child could be graduating, sick or changing schools.

Persons with divergent religious backgrounds are also included in the legislation. Companies can give allowances for special festivities or rituals. For instance, a devout Muslim may need time off from work to do his daily prayers. Alternatively, the person could have a religious holiday that he needs to celebrate.

Employers ought to make these considerations before making deadlines or assigning work. Numerous possibilities exist for alternation of work policies, duties, and arrangements. Managers ought to make these decisions in order to ensure that all employees are fully accommodated.

When people with a genuine need for accommodation are denied this opportunity, then a unionised worker has the right to file a grievance to the Saskatchewan Human Rights Commission through a collective agreement. Employees without unions may still file grievance through the Saskatchewan Labour Standards Act.

This means that organisations can face huge financial losses if fines are imposed. Alternatively, their company image would be tarnished and this could ruin business. If companies want no business interruptions, then they should meet these obligations.

Accommodation and return to work as related to an organisation’s Integrated Disability Management Program

The Saskatchewan Labour Standard Act on the duty accommodate places upon managers a responsibility to have an effective disability management program in which they offer supportive workplace policies. They should also encourage the worker, his or her union, and healthcare professionals to cooperate with management.

A conducive disability management program should consist of an element of evaluation. Managers must be educated about their duties and responsibilities in the disability management program (Brooker et al., 2000).

The first step in the creation of an integrated disability management program that complies with the return to work law is development of an accommodation and return to work policy. Employers need to cover all the issues that affect an injured or protected worker in a return to work policy.

Some of the elements of the policy may include budgetary issues, salary replacement, transitional employment as well as accommodation. These policies will assist in getting commitment from top management as well as involvement from employees who need accommodation.

A proper disability management program needs to have an offer of modified work. Here, a company should reduce work hours, alter a worker’s original job, transfer the worker, or minimise work load if an employee is injured. Permanent job modifications are sometimes imperative for an employee to return to work fully.

This measure will reduce recurrent absenteeism from employees and will also minimise the need for high amounts of benefits. It should be noted that a company has the obligation to alter both physical and psychosocial factors in their disability management program. The latter refers to aspects such a workplace intensity or control at work while physical factors include seating positions or forceful movements.

Supervisors and management who are responsible for implementation of the system ought to be educated on the program. Training should involve telling managers and supervisors about the disability or condition. This will empower them to handle the condition or disability more effectively and assist in gaining empathy from them.

Lastly, the disability management program should have an evaluation phase. Here, the effectiveness of the program should be assessed on the basis of its outcomes. One parameter would be the number of workers who returned to work. Cases of workers whose conditions worsened or improved after returning to work should be noted. Even aspects such as severity of pain can also be measured.

Conclusion

Companies must make reasonable adjustments for employees from protected groups, injured, or ill workers. This ensures that employees are not discriminated against and that companies do not place health risks on workers. Employers have the duty to accommodate by making psychosocial and physical changes to work.

This can be done by personal observation or by requests from employees. Workers and unions must also cooperate with employees in order to make it work. A supporting workplace environment ensures that employees stay employed or they can return to work and engage in productive work.

References

Association of Workers’ Compensation Boards of Canada (2011). Rehabilitation and return to work. Web.

Brooker, A., Sinclair, S., Clarke, J., Pennick, V. & Hogg-Johnson, S. (2000). Effective disability management and return to work practices. Web.

MacDonald, S. (2009). Employer’s duty to accommodate an employee’s disability: When does it end?. Vancouver: Continuing Legal Education.

Saskatchewan Human Rights Commission (2012). Saskatchewan Human Rights Law. Web.

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