Employment, Labour and Equalities Law Webinar Series: Accommodation

[AUDIO LOGO] ELISA SCALI: OK, I think we'll get started. But before we begin our program, I would like to acknowledge that, because we are all based in different cities and provinces across Canada, we are located in different traditional Indigenous territories, some of which are covered by treaties. I encourage us all to take a moment to reflect upon and acknowledge the land upon which we are living. If there are Indigenous people attending this webinar, please feel welcome.

 

Thank you for joining us today. My name is Elisa Scali. I'm a partner with Gowling WLG, and I'm a member of the employment, labor, and equalities team, which we like to call ELE for short. So on behalf of the ELE team, I'd like to welcome you to the fourth webinar of our 2024 webinar series.

 

Today's topic is on workplace accommodation, balancing the employer's obligations with the employee needs. To guide us through this interesting but also complex topic, we have with us here today Melissa Roth, Peter Vlaar, and Bettina Burgess. Melissa, Peter, and Bettina are all employment lawyers that are members of our ELE team. They're all based out of our Waterloo office.

 

When Melissa, Peter, and Bettina are not advising clients or in a courtroom, they do like to do some traveling, but you likely won't find them in the same place or at the same destination. What I learned is that Melissa likes nature. She likes to be somewhere where she could hear the loons, where there's no electricity, no Wi-Fi.

 

On the other hand, you have Bettina. You won't find her anywhere near Melissa when she's traveling. She would like to be in a five-star resort. She doesn't leave her house or go traveling, unless it's somewhere nicer than her own home. That's her mantra. And then we have Peter. Peter likes to travel from coffee shop to coffee shop because he loves coffee, but he also knows that the best places in a city are near the best coffee shops. So that's where he starts his exploring.

 

All right, so a few housekeeping items before we begin our presentation today. The PowerPoint presentation will be distributed to you, following the webinar. This webinar is being recorded. If you would like to view all of our previous webinars, we have the recorded sessions available on our web page. And you will find the link to the web page in the chat.

 

If you'd like to ask questions, please click on the Q&A icon and add your questions. We will do our best to get to all of your questions. But just would like to remind you that this webinar is not intended to be legal advice. It's intended to be a high level overview. So please keep your questions general.

 

If you have a detailed question or your required legal advice, we do encourage you to speak to your legal counsel or speak to any of our presenters following the webinar. Please do not hesitate to reach out to them. OK, so we will get started. And I believe Peter will be kicking this off for us.

 

PETER VLAAR: That's right. Thank you, Elisa. And good morning, everybody, and welcome to this webinar. I hope that you've all settled in at your desks and have had the chance to have your morning coffee. You now know that I'm a big coffee fan. And I do firmly believe the importance of caffeinating in the morning. But please do remember to drink responsibly.

 

So Bettina, Melissa, and I have the opportunity to talk to you this morning about accommodation in the workplace. And our goal in this conversation is for you to walk away with a greater understanding of what the law requires of you as an employer when it comes to workplace accommodation and also for you to walk away with what we hope is greater confidence in being able to respond to the scenarios that you might encounter with the accommodation needs of the diverse employees that you encounter in your workplace.

 

And how we hope to do that or how we plan to do that in this presentation this morning is we're going to break it into, essentially, two parts. So we're going to start with talking about what you see in the slide in front of you, which is what the law requires of employers. We're going to do a bit of a high level overview, touching on some of the key, common, protected grounds under the human rights code that you might encounter in the workplace.

 

And then we're going to move on to some real-world examples in the form of case studies. So we're going to start a little bit heavier with the substantive stuff. Then once your caffeine has worn off, we'll get a little bit more into the practical application, which will be a bit more engaging, and, hopefully, practical, and helpful for you in your roles as employer's management in the workplace.

 

And as we do this, we're going to be focusing primarily on the human rights code and the principles that flow from that piece of legislation. And the reason is because it applies to all Canadian human rights legislation across the country. Each province has its own dedicated human rights code. And the principles are transferable and applicable wherever you might find yourself and wherever you might have operations if it's not just in Ontario.

 

And it's also important to note that when you're thinking about accommodation in the workplace, it's not just the human rights code that you need to consider, there's other pieces of legislation, including AODA, which is the Accessibility for Ontarians with Disabilities Act, and the Accessible Canada Act, which is the federal piece of legislation covering accessibility and accommodation.

 

Those can also trigger accommodation obligations. So it's not just the human rights code. We're not going to be getting in depth on those pieces of legislation. We do have other webinars that you can access on our website that do get into the weeds of AODA, for instance.

 

So feel free after today to have a look at those. We will be touching a little bit on AODA. But just keep that in mind when you're considering your workplace obligations as an employer, that the human rights code is the main one, but it's not the only one. There's other ones at play.

 

So looking at the next slide, we're going to be-- as I said, the human rights code is the main piece of governing legislation that we're going to be talking about. So provincially-regulated employers are going to be guided by the human rights code that is in the province in which they're operating. Whereas, obviously, federally-regulated employers are going to be governed by the federal piece of legislation. And that is called the Canadian Human Rights Act.

 

As I said, the principles are transferable and applicable. A lot of the case law that we talk about is going to be drawn from Ontario. But what's important, what we want to highlight is that under the provincial human rights codes and the federal codes, there's these key commonalities that you want to be aware of. They all have the freedom from discrimination protections in there for workers, freedom from harassment protections, and they all have a principle embedded in them that's called constructive discrimination that we'll touch on in a moment.

 

So freedom from discrimination. That may sound obvious. I think it's worth just taking the example from the human rights code, the Ontario Human Rights Code, just to take the language directly from there for a moment. Section 5 of that code says, every person has a right to equal treatment with respect to employment without discrimination because of disability, creed, family status, and the list goes on.

 

Section 5 is the key code that you want to look at to consider what the protections that employees have with regards to the protected grounds on which they may not be discriminated against. You may hear from employees who say you are discriminating against me, that when you are unsure whether that is true, this is a good place to go to look to see whether the discrimination that they're claiming is rooted in one of these protected grounds.

 

There's also the freedom from harassment. Every person who is an employee has a right to freedom from harassment in the workplace by the employer, or agent of the employer, or by another employee because of, and then it lists, again, the protected grounds, which includes disability, includes creed. It includes family status.

 

So again, we see the legislation will specifically state the protected grounds under which someone may not be harassed. An employee, if they come to you and say they're being harassed, a good place for you to start is to see whether that basis of the harassment that they're claiming is rooted in a definition in the human rights code.

 

Constructive discrimination. So this is where a workplace rule or policy may not intend to be discriminatory, but it has the effect of excluding a particular worker or group of workers and is therefore construed, that's where you get the word "constructive," it is construed to be discrimination, unless the requirement is reasonable and bona fide in the circumstances.

 

And so section 11 of the Ontario Human Rights Code tells us that a factor cannot be reasonable, unless the person's needs cannot be accommodated without undue hardship, considering the cost, outside sources of funding, and health and safety requirements.

 

So discrimination is not always explicit or deliberate on behalf of management or the employer. But depending on how rules or policies might impact particular groups, it may be considered discrimination, it may be construed as discrimination under the relevant human rights legislation. So that's an important consideration to keep in mind as an employer.

 

So looking at the next slide, we are-- so what we are going to be doing throughout this presentation is looking specifically at a few of the more common protected grounds under the act. And disability is one of them. We're going to be talking about family status and we're also going to be talking about greed. These are a lot of the common protected grounds, the common scenarios that employers face in the workplace.

 

So when we think of disability, we need to not just think of how we define disability personally or, perhaps, the traditional understanding of a disabled person, you might conjure up images of a wheelchair, and that might be too narrow-- that is too narrow of what the legislation really considers disability to be.

 

The legislation really defines it quite broadly. And it's a bit of a lengthy definition that's included in the human rights code. But I do think it's important and it's worth reading through. And as I read through this, I want you just to think of whether it matches your definition of disability. So I'll just ask you to take a quick second to conjure up your own definition of disability. Consider what you think meets the definition of a disabled person and then reference that against what you hear here from the legislation.

 

Visibility means any degree of physical disability, infirmity, malformation, or disfigurement that is caused by bodily injury, birth defect, or illness, and includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog, or other animal, or on a wheelchair, or other remedial appliance or device.

 

A condition of mental impairment or developmental disability, a learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, a mental disorder, or an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety Insurance Act. Did that meet your definition of disability? I'll be interested to hear later.

 

So you hear that it's not just physical, but there's also, importantly, a mental component to that definition of disability. And you will also have noticed, at the end, that little point about WSIB, where it says it includes an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety Insurance Act, which is WSIB.

 

That is quite a broad definition because it doesn't hinge that definition on a claim under WSIB that is accepted. It's just whether it is claimed. It's not claimed and received, it's claimed or received. So technically, under that definition, simply making a claim for WSIB can be sufficient to meet the definition of a disability under the human rights code.

 

Now, my theory is that this is built in to prevent employers from thinking that there's no duty to accommodate in the event that a WSIB claim is rejected. But regardless of the reason for why this language is in there, the result is an extremely broad definition of disability. And the case law has demonstrated that even a perceived disability can qualify under the code. It doesn't even need to be a tangible disability that we might traditionally consider to be a disability.

 

So there's a very broad definition. And that's an important thing to know as employers as you consider your duty to accommodate employees in the workplace. And that can be an overwhelming prospect to employers, understandably. But I'll pass it over to Melissa now to talk about what limits there are to employers duty to accommodate. Melissa.

 

MELISSA ROTH: Thank you, Peter. Welcome, everyone, this morning. And by the way, I know good coffee shops are in good parts of the city, but I can tell you that last weekend when I was having coffee with my little AeroPress and water that had been filtered with a charcoal filter from the lake, it was fantastic. The setting, I think, doesn't get beat either when you have loons, and lakes, and trees on the other side.

 

Anyway, taking it you back to the webinar today, Peter has given you a great introduction to the law and what the law requires. And maybe you're left with, are there any limits to the employer's duty to accommodate? And in fact, there are. So there are a few limits. And one of them is remembering that no matter what kind of protected ground we're dealing with, the individuals seeking accommodation needs to be able to perform the essential duties of the position.

 

So this means that we're going to need to be able to demonstrate what those essential duties are. And ideally, those are something that you've thought about before, and not at the time of receiving a request for accommodation, as well as there's another limit, which is undue hardship.

 

The employer doesn't have to go through undue hardship in order to implement an accommodation. So the employee must be able to perform the essential duties of the position with or without modifications to the position. And that's part of the accommodation process. But the employer does not have to face undue hardship.

 

These two concepts are, in fact, built into, at least, the Ontario Human Rights Legislation. And as Peter mentioned, they're similar build-ins in the other legislation. But in Ontario, it's under the human rights code, Section 17(1) and 17(2). Both the undue hardship concept and the essential duties are also dealt with there.

 

The other limit to the duty to accommodate is a bona fide occupational requirement. And you might have heard about the Meiorin test, the forest firefighter that was a female forest firefighter that had to do a test, in which the results would be different, normally, from the perspective of male and female.

 

So from that case, we got the BFOR, or bona fide occupational requirement, test. It consists of the following. The requirement has to be adopted for a purpose that is rationally connected to the performance of the job. The requirement has to be adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose. And the requirement is reasonably necessary to accomplish that legitimate work-related purpose, which means that it is impossible to accommodate without undue hardship.

 

The Canadian Human Rights Act has a definition also of a bona fide occupational requirement, as well as the other pieces of legislation in other provinces. So ultimately, what we have to think about is that the goal of accommodation is to ensure that an employee who is able to work can do so.

 

And in practice, what this means is that the employer has to accommodate the employee in a way that, while not causing undue hardship, will ensure that the employee can perform those essential duties of the position. So it is not to modify the work to fit their preference, but it's to ensure that persons who are otherwise fit to work are not unfairly excluded from the workforce and that we can adjust the working conditions as needed.

 

Now, what does the case law tell us? The case law tells us that discrimination requires three things. The employee has to first demonstrate that they have a protected characteristic, a protected ground under human rights legislation. But that's not enough because as-- one of my favorite quotes from a case from the Human Rights Tribunal of Ontario, by virtue of our humanity, we essentially all identify with a protected ground under the code.

 

So identifying with a protected ground is not enough. The employee has to experience an adverse impact in their employment or whatever social area we're dealing with the provision of services. But for the purposes of us today, mostly, we're going to be dealing with employment. And that protected characteristic has to be a factor in the adverse treatment or the adverse impact, not just necessarily treatment, but the adverse impact that the employee received.

 

So what this means is that, before getting to the point of having that duty to accommodate and before dealing with accommodation, there needs to be a disability or other protected ground engaged. And the employee sometimes may not need to prove that disability or may not need to prove that protected ground in a way that requires an extreme amount of paperwork, for instance, because sometimes those protected grounds may be obvious.

 

But the part that we want to empower you today, and you will see that we will deal with this in the scenarios, is to not be afraid of when you do have to look for that proof, and to also make sure that when you're dealing with disabilities, you're not implementing accommodations without knowing what those disability-related needs are.

 

The same applies for any other protected grounds. But ultimately, we need to make sure that we are in a situation where we need to provide accommodation. And the first step to that is to ensure that we're dealing with a protected ground under the code.

 

Now, when we're dealing with accommodation, what we have also learned from the case law is that there is both a procedural duty to accommodate and a substantive duty to accommodate. So in the slides there, you have a couple of cases that have a nice analysis with respect to the procedure and on the substantive duty to accommodate.

 

The substantive duty to accommodate is, did we get to the right result? Was our ultimate goal and what we reached, did we get it right? And there may be more than one reasonable accommodation, because remember, we're not accommodating preferences, we're accommodating needs. And there may be more than one way to achieve that accommodation.

 

So it may be that when we are in front of [INAUDIBLE], which, hopefully, none of us are, but reality is sometimes we need to go and proceed to litigation. So when we're in front of an adjudicator, one of the items that they're going to look at is, did we get it right? And what we did may not necessarily be what they would have done, but there may be more than one result. So if it's reasonable, it will be accepted.

 

--to accommodate is what we often see failures in, and that is the procedural duty to accommodate. How did we get there? This is where we see issues because the employer is to engage in an inquiry that is collaborative. And we're going to talk a little more about this later.

 

But the point is that we can't just hear what they say, make a decision, and think that it ends there. And what they say, I mean the employee. But sometimes it's the employee, sometimes it is their doctor, sometimes it is their religious leader. Whatever it is, we need to engage in a process.

 

Because what might end up happening is that an adjudicator may decide that you reach the right objective goal at the end, you implemented the accommodation that you were supposed to implement, or you couldn't have done any more than what you did in the sense of fulfilling the request that the employee wanted, but how we got there is extremely important.

 

And damages can arise from failure to follow the procedural duty to accommodate. And this is key for employers to understand. We have to engage in that process. We have to involve the employee in that process. If there is a union, we have to involve the union in the process.

 

But the procedural duty is just as important as the outcome. A breach of either one of those will result in liability and will result in damages. So why the procedural duty matters so much is because we need to ensure that every employer is engaging in a process, where we start with clear policies, for instance, clear protocols.

 

Because while human rights legislation may not require you to have a specific policy with respect to accommodation, remember, AODA does have certain requirements, and you may have similar requirements in your legislation, whether it is provincial or federally, for instance, to create an individualized accommodation plan, which all of those things actually help you in your procedural duty to accommodate, those requirements in the accessibility legislation will help you fulfill that human rights procedural duty to accommodate.

 

But for instance, in the case that is on your slides, Skedden and Dofasco, the failure to have clear policies and protocols constituted a breach of the procedural duty to accommodate. And in that case, the tribunal said it is not clear whether the respondent, in fact, has a policy and procedure on disability accommodation or a return to work, stay at work policy.

 

And the tribunal noted that although management had testified that they had received training, which involved a [INAUDIBLE] policies, and human rights, and the duty to accommodate, at some point, several years before the events given rise to the application, that was clearly not enough, because it wasn't embedded, it wasn't part of the day-to-day process. So we cannot highlight it enough to engage in that dialogue to make sure that you're not in breach of the procedural duty to accommodate. Now, I'm going to pass it to Bettina to tell you a little bit more about when that duty is triggered.

 

BETTINA BURGESS: Thank you, Melissa. And the best place to get coffee when you're on a trip is in your hotel room with room service. Just saying. So from my colleagues, Melissa and Peter, as you guys have been doing your presentation, there have been some questions that have come in through the chat. And I've responded to a couple of them. So please feel free to check those. And to the audience, some really good questions are being dealt with in the chat as we go along.

 

OK, so when is the duty to accommodate triggered? There is an easy answer and there's a hard answer. The easy answer is when an employee requests one, when they specifically come to you and say, I need an accommodation for XYZ reason. Then your duty to investigate, not to accommodate, but to investigate the accommodation has been triggered under both the human rights code and, of course, if it's disability-related under the AODA.

 

The harder one is when the employee hasn't made a request for an accommodation. That doesn't get the employer off the hook because under both the AODA and the human rights code, an employer has a procedural duty to make inquiries with the employee where there are reasonable grounds to believe that an employee may require an accommodation.

 

I've had many situations where clients come to me and they have an underperforming employee and it's new. It's over the last six months. They've been great, up until this point. But very recently things have been going downhill. And they've heard that there's something going on in the employees life or they suspect that the employee has a substance issue.

 

But they don't want to ask questions because they don't want to get involved in that and they don't want to trigger their obligation to accommodate. Burying your head in the sand will get you in just as much trouble as just blatantly not accommodating the employee. So you do have a duty to make inquiries. Next slide, please.

 

OK, yes. So the HRTO requires that you have to be alert. You have to be mindful. Now, this doesn't mean that you have to be doctors. No one is expecting that. And that is sometimes very frustrating for our clients because you are expected to be alert and to be mindful of things.

 

And my recommendation is watch for signs that things have changed with long-term employees. Were they always a good employee and very recently things have started to go bad? Is there evidence, the substance abuse? Are they coming to work with alcohol on their breath? That type of thing.

 

Then the next issue becomes, well, I don't want to invade the employee's privacy. These are very sensitive issues. I don't want to make the employee feel uncomfortable. I don't want to pry. Well, I'm giving you permission to do so under the human rights code. Here, today, you have permission to pry, but you do so with sensitivity and you do so knowing that all you're doing is complying with your obligation under the human rights code to make inquiries.

 

So if you sit down with the employee, you have a conversation, and you say, look, we noticed that your performance has been dropping off. We've heard through the grapevine that XYZ is going on in your life, or uncomfortable, but needs to be said, you've been coming into work. You've been slurring your words. What's going on? Is there something going on in your life that is impacting your performance?

 

The employee may deny it and say, no, nothing going on. Nothing going on. Nothing going on. As long as you have taken steps to make inquiries and to do a reasonable investigation with the employee, then you have satisfied your obligation under the human rights code.

 

And if you continue then to performance manage the employee as you normally would as though they didn't have a disability, you have a defense to any allegation that they can make down the road that you discriminated or you failed to accommodate. But you must make those inquiries.

 

There was a case that's mentioned here. This was a case where an employer failed to make those inquiries with an individual who had given some indication that she had a neurodivergent issue. And the employer decided that the employee had performance issues, wasn't doing well at the job, so they were going to terminate employment.

 

And at the termination meeting, the employee reminded them, well, I have this issue. I told you about this issue, or you should have known that I had this issue because of XYZ. The employer went ahead with the termination of employment because taking the position that, well, we weren't specifically asked to accommodate this employee. And the Human Rights Tribunal held, of course, that they failed in their duty to make inquiries into accommodate.

 

And I have a wonderful, amazing colleague in our Ottawa office who Elisa works with named Melanie Polowin. And I hope that you've all had the pleasure of listening to Melanie speak. Years ago, she did a presentation. And I will never forget the term she used, which was stop, drop, and roll.

 

When you are in a termination meeting with an employee who tells you, oh, by the way, this is why I haven't been performing well, it's because I'm depressed or I've got this particular issue, I understand that it is frustrating as all get out that this may be the first time you're hearing it, but you now have little embers burning into your clothes as an employer. And if you don't pivot away from that termination meeting, at least for a while, you will become a blazing fire, eventually.

 

So what you need to do is say, OK, thank you for that information. We're going to suspend this termination meeting and your duty to make inquiries, and to investigate whether the employee, A, does actually have the disability that they claim that they have. And B, is there an accommodation that can be implemented that will result in their success? If you don't take those steps, you will potentially face significant liability under the human rights code.

 

With respect to the duty to accommodate when you ought to reasonably know or ought to know, there are, of course, situations where employees will allege that, well, you should have known that I had this disability. I'm working on a situation right now where an employee's employment was terminated because they brought alcohol to work. And her employment was terminated for cause because the employer had a zero-tolerance policy. Now, whether or not that constitutes cause is an entirely different discussion.

 

But was the employer's duty to accommodate or make inquiries triggered? We are defending on the basis that, no, because there was no other evidence exhibited by this employee that she had an alcohol-dependency issue. The one and only thing that she did was bring alcohol to work.

 

And so under those types of circumstances, where that was the only indication of alcohol even being in this person's life, there wouldn't be a duty to make inquiries, in my opinion. All right, Melissa, I think I'm going to turn it over to you now to talk about what to avoid.

 

MELISSA ROTH: OK.

 

BETTINA BURGESS: I think we do have to advance the slide.

 

MELISSA ROTH: Yeah, the next slide, I'm happy to do as well.

 

BETTINA BURGESS: Did I miss it?

 

MELISSA ROTH: There we go. [INAUDIBLE].

 

BETTINA BURGESS: OK, sorry, everybody. I did miss it. OK, so it's essentially what I was talking about. There are disabilities that are going to be blatantly obvious. Somebody is in a wheelchair. They have a visual impairment. They're blind. They come to work with a white cane. They can't lift things. They're in pain. That type of thing.

 

The other ones that are much, much harder to realize are going on are things like alcohol dependencies, mental health issues, cognitive impairments, neurodivergence, that type of thing. So once again, if you see that someone is struggling with, especially in the cognitive realm, doing office work-type work, cognitive work as opposed to physical labor, those are really challenging, but you should make inquiries. Is there something going on?

 

What's the reason why you can't do XYZ? We really need you to step up. And if an employee does indicate to you that they have some type of cognitive disability, or issue, or they're neurodivergent, you do have to engage in the accommodation process.

 

Now, those ones can be very challenging. The obligation to accommodate does not mean that you have to change everything that you do. I did have a situation with an individual who had a neurodivergent issue. She was autistic. And she worked in a very senior level job in advertising. And when she was diagnosed, she was diagnosed very late in life while she was employed with this particular employer. And she learned about her condition and all of the areas where her condition impacted her ability to do the job.

 

So she came to the employer with this laundry list of things that she expected the employer to do, including give me one task at a time. I want all of my instructions in writing. You have to schedule all meetings with me well in advance. Because if you don't do that, then that causes me angst and so on. And there were things like this.

 

You don't necessarily have to accommodate those issues. Remember that the accommodation process is collaborative. The employee also has obligations. So what we did in that case was retain a third-party expert in the occupational field of working with individuals with neurodivergence to give strategies to that employee to help them be able to cope with their disability.

 

So rather than the employer having to give all instructions in writing, the employee was advised you're going to get your instructions verbally, but you need to take notes. Now, the employee very much resisted all of that and we pushed back successfully because the employee, again, does have an obligation to cooperate in the accommodation being offered. Now I am finished. Over to you, Melissa.

 

MELISSA ROTH: Thank you very much. So some of the things that are in the next slide, we've already gone over. So I won't repeat it so we have time for the stuff that we haven't talked about. So now, on the second bullet point, this is very important. Overall, you do have to avoid rigid rules. Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, we have to avoid rigid rules.

 

So some of the questions, for instance, that were in the chat were talking about using a third-party provider to assess the medical. That's all fine. But one of the questions, for instance, was what if our employee is refusing to provide the medical to the third-party provider?

 

Well, in that case, we're going to have to inquire a little bit more as to why. Is there a concern with bias? Is there a concern with confidentiality? Do they know somebody that works at the third-party provider? So again, avoiding those rigid rules to ensure that we're actually engaging in the procedural duty to accommodate, which, as we mentioned, is the one where we fail often.

 

The other important part is the second bullet point there. What ends up happening is that sometimes management will implement accommodation without input from HR. So what you're risking there is that you're risking accommodating against company policies. There may be a procedure that needs to be followed.

 

And while we're not suggesting that you're not going to accommodate someone if they didn't bring the request for accommodation in writing in the specific form that the employer wants them to bring, that's not what we're suggesting. But what we don't want is managers on the ground to, for instance, implement accommodation without contacting HR at all.

 

So managers need to understand that the important part of accommodation is to enable the employee to perform the essential duties of their position. So we need to know what we can or cannot accommodate. Because if management implements informal accommodations that we later try to pull back from, we're going to have a real hard time pulling back from those accommodations [INAUDIBLE] implemented them for, say, two years.

 

And then we find out, as HR or legal, and we try to pull back from that and we try to make an argument that that's not reasonable accommodation. Well, it's going to be really hard to make that argument, when for two years, this has been working. So you may lose your undue hardship defense.

 

If management makes undocumented or uninvestigated accommodations without the knowledge of HR or higher leadership, that will definitely impact the company's ability to bring a defense, decide to not accommodate anymore, or other defenses that may have otherwise been viable if we didn't do that. Now, Bettina will finish off with the second slide on what to avoid, and then we'll get into some more of the detailed analysis of situations.

 

BETTINA BURGESS: OK, so when an employee comes to you with a request for accommodation, you cannot say to an employee, well, I can't put you in that position that's available because, really, the next person in line for that position is Bob, who has been with the company for 24 years.

 

And so he was promised that position. You can't do that. Under human rights, if that position is something that Sally can do and she would otherwise have to be let go because of her disability or whatever the issue is, the position has to go to Sally. And Bob is out of luck.

 

Now, you have no obligation as an employer to create a position. You don't have any obligation to create a part-time shift if the employee is full-time. You have an obligation to offer modified hours if that's something that you can do without creating undue hardship. You don't have any obligation to create duties that an employee can do. You don't have an obligation to create makeshift work that offers no value whatsoever to the business.

 

If you do have a position that is available, that has nothing to do with what the employee did, or might be at a lower level than the employee, you do have an obligation if the employee is skilled for that position or could do that position with a reasonable amount of training, you do have a duty to offer it to them.

 

They can say, no, I don't want to do it, in which case then, you can say, OK, your employment is over. Contract of employment has been frustrated due to your disability. You only owe them their ESA entitlements and you've satisfied your obligation under the human rights code.

 

If they accept the position, lower level, reduced hours of work, or a different position with a different pay scale that happens to be lower, you don't have to pay them at their old salary if it was higher, you pay them commensurate with the work that they are now doing. You may get claims from plaintiff counsel saying that's constructive dismissal. It's not. I am finished with this one. Over to Peter.

 

PETER VLAAR: Yes, thank you, Bettina. And I agree with both you and Melissa that coffee is good surrounded by nature, and it's good in your hotel room. It's really down to personal preference. That's the beauty of coffee. And personal preference is something that we're also going to touch on when dealing with this matter of your creed.

 

So if we look at the next slide. So Creed is another protected ground that commonly comes up among employees seeking accommodation in the workplace. But what is it? It's not a word that we commonly use. How is it defined? Unfortunately, it's not defined in the Ontario Human Rights Code, but it is defined in case law. And case law indicates that creed includes religion, but it may also be broader than religion.

 

And it's worth going through how the Ontario Human Rights Commission defines creed and how also the case law accepts and defines creed. It's a belief system that may have the following characteristics. It's sincerely, freely, and deeply held. It's integrally linked to a person's self-definition and spiritual fulfillment. It's a particular comprehensive and overarching system of belief that governs one's conduct and practices.

 

It addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a creator and/or higher different order of existence. And it has some nexus or connection to an organization or community that professes a shared system of belief.

 

And when we look at the next slide, an important distinction when we're considering creed is personal preference. So when you're assessing whether it is in fact a creed that is protected under the human rights code, it's key to distinguish whether it is sincerely held and meets the definition or whether it really just is a personal preference of the worker.

 

And a great example of this is in the COVID vaccines-- I hope that didn't just trigger anybody, but it's a good example. So bear with me. There obviously were a lot of mandates to get the vaccine. And the Ontario Human Rights Commission actually came out and made a statement that said personal preference to not get a vaccine does not amount to creed. So just because you personally don't want to get the vaccine, that doesn't meet the definition of creed under the human rights code.

 

However, then the case law developed and the Human Rights Tribunal has confirmed that that is true, but that also that where there is a sincerely-held belief with a sufficient nexus or connection to a system of belief, for example, Catholic faith, then that does amount to creed under the code.

 

So there's a little nuance there and an important distinction between personal preference and a sincerely-held belief. You can't just make something up, like my creed is to not work more than two hours a day, and therefore, you need to accommodate that. There are parameters. There are guidelines for assessing what is a legitimate creed that needs to be accommodated.

 

And so what might religious accommodation look like? So some examples here of what that might be include providing time off for religious holidays or time away from work to pray, providing breaks, and prayer rooms or at least a quiet place to pray, making modifications to dress codes or uniforms to accommodate one's religion, or allowing menu options when food is served that might meet dietary restrictions associated with religion.

 

But it's important to note, as addressed already before, that the duty of employers in accommodating their religion is always to the point of undue hardship, including the cost of business, and health, and safety risks. So those examples may not apply to every single context. It really is an individual, context-specific analysis.

 

So what proof can an employer request when faced with a religious accommodation request from a worker? So there's no free-standing right of accommodation. The duty to accommodate, as has been mentioned, involves a cooperative and collaborative effort between the employer and the employee.

 

The employer's goal should be to understand whether the accommodation request is essential to the worker's religion or if it's simply a preference. So the employer, to do that, can request things like documentations of beliefs, which, for instance, a statement from the employee explaining their religious beliefs and how they might relate to the accommodation that they're requesting. You can ask for a letter from their religious leader confirming that their affiliation is true with that religion and affirming the need for the accommodation that's being requested.

 

What employers should not do is ask, at the point of hiring, during the hiring process, what's an individual's religious beliefs are or practices, because that is going to be setting yourself up for a discrimination claim. It can be tempting, of course, for employers as you're trying to factor in the practical implications that might be involved in hiring someone with particular requirements associated with their religion. But it should be avoided. And remember, you always have that limit of undue hardship.

 

I'll just quickly go through a recent case that's quite interesting as it highlights how employers ought not to act when faced with a religious accommodation scenario. So this is a case that just came out from the Human Rights Tribunal involving an employer in Hamilton, Ontario.

 

They hired an employee in 2017 who, after she was hired, disclosed her need to be accommodated to pray at certain times. And so the employer did allow that. They said that she could pray beside her desk at the dedicated hours that she required. I believe it was three times that she needed to do it during her shift during the day.

 

And that went OK for a period of time. She had a few other requests. One of them was a change in her schedule or shift temporarily so that she could break her fast after Ramadan. The employer's response to that is one that we don't recommend you adopt, which was that there's thousands of religions, that if I accommodate you, I have to accommodate all of them.

 

And he also said he didn't give a, you know what, about religion. So that's not a healthy posture, not an appropriate posture and attitudes towards employees who are seeking accommodation for their religion. And it's what you'll see led to the scenario here where the employer got a hefty fine.

 

So while praying in the lunchroom because the worker was no longer able to pray beside their desk because of space, and so they started going into the lunchroom, her boss came in and interrupted her during her prayer, which was very unsettling for the worker. And the boss told her that people felt uncomfortable with her praying in the lunchroom, that people had complained to him about that. That led to a verbal altercation. And the next day, she was terminated for insubordination.

 

And the tribunal found that, surprise, surprise, the employer breached the human rights code. The tribunal found there was no evidence that the employer attempted to accommodate use of the lunchroom for prayer by informing-- so the employer had allowed the use of the lunchroom, but there was no evidence that they had informed or educated the other employees that the employee had a legal right to pray at work and to use that space.

 

There was no policy or information of any kind regarding the respecting of human rights in the workplace. And the tribunal found that the sole rational inference for her termination appears to be her practice of praying, which is part of her creed that's protected under the crown.

 

So they weren't buying this insubordination premise. They found that the real reason was because she was practicing her religion. And so the employer, as a result, was ordered to pay a hefty amount in damages for compensation to her injury to dignity, feelings, and self-respect, as well as lost income.

 

So this case really just highlights the importance of taking the steps as an employer to inform other employees of the accommodation so that they know that employees have the legal right to exercise their faith if it's in a bit more of a public space, that they are visible in the manner in which they're doing it. And if you don't, it can be costly. So with that, I'll pass it back over to Melissa to walk us through an accommodation case study.

 

MELISSA ROTH: All right, so we're going to start with what we gather from anecdotal experience from working with our clients that is one of the more difficult things to accommodate, and that is the invisible disabilities. So you'll see that we're dealing with an employee around 30-year-old, an administrative assistant has been working there for about five years. Her job is to field customer calls, she does internal office support, and process billing to clients.

 

The employ, in this case, is modernizing their billing system and is going paperless as many of us have gone to and tells all the admin staff that there's new software and they're going to have to be trained on this new software for paperless billing. The employee, Amelia, enjoyed working with paper as it made it easier than on a computer for her to organize and track her work.

 

And she found that this kind of work, doing online work, was more challenging since she suffered a traumatic brain injury when she was 20 years old, so about 10 years ago. The employee communicates her frustration with the change to her colleagues, and she says, I don't want to do online billing.

 

So the employer, the supervisor-- we're now in a situation where we have a compassionate supervisor that feels sorry for her. And the supervisor gets a note from her family doctor that indicates that she suffers from short-term memory loss and inattention due to a traumatic brain injury. And so she is unable to do the new software training. So the supervisor is surprised about learning about this disability as this is the first time that the supervisor has heard about this.

 

Now, the supervisor, let's say, in this case, the supervisor actually accepts Amelia's note and the note from her family doctor and tells her that she can skip the train and she won't have to do the billing anymore going forward. The supervisor didn't consult HR beforehand. And just so you know, billing is actually about 30% of Amelia's job.

 

So as you can see here, the supervisor lets the doctor dictate how the workplace will be run by allowing this employee to simply not attend the training. I would like to hear from Bettina or Peter being perhaps playing the role of a client whether they think that this was a good approach from the supervisor's perspective. And if it wasn't, what could that supervisor do to deal with this situation?

 

BETTINA BURGESS: Sorry, Peter, I'm going to fully confess that I was not paying attention because I was answering the questions in the chat. So can you please go ahead.

 

PETER VLAAR: I also was not fully following. And I apologize, Melissa. Can we go back--

 

MELISSA ROTH: That's OK. That's OK. So I'll jump in here. I'll play a different role. So I'm the supervisor now, and I'm going to go to HR. And I'm going to tell HR I let Amelia not do the training, she brought me this note, and we're in day two of the training and she's not doing it.

 

So what has happened here is that, as you may know, and this was one of the questions in the chat, the employee or the doctor is not to dictate how the workplace will be run. What has happened here is that we received a medical note, perhaps from a very good well-intentioned doctor or from an activist doctor that is listening to Amelia and saying, well, Amelia doesn't want to do the training.

 

Amelia tells me that the training causes her issues, so I'm going to tell the employer that they are not to do the training for Amelia. So presumably, Amelia is going to not go into paperless billing and continue to do things by hand based on what the supervisor has told her.

 

However, once HR finds out about this, HR is not content with allowing Amelia to continue on paper billing because the company is moving paperless. We're not going to have that option anymore.

 

And the other part that we need to question is, do we have to actually accept everything that is in that medical note? Engaging in the process in good faith doesn't mean blindly accepting the employee's preferences or their doctor's opinion about what should or should not happen at work.

 

So the message here is that we have to be not afraid of pushing back. And so what are the employer's options in this case? Well, the employer does not have to accommodate preferences, and the employer has to find out what those restrictions and limitations are.

 

We run into situations sometimes, I'm not going to say usually, but sometimes we run into situations where the doctors are really parroting the employees preferences when they're making these comments in their notes, like the employee cannot do night-shift or the employee cannot learn new processes, or like Bettina said, in her case, where a laundry list of specific accommodations that needed to be implemented, instead of letting us know what the restrictions and limitations are.

 

So when you see something like this happening, let that be a trigger to dig deeper into understanding the nature of the disability. Remember, you're not allowed to know the diagnosis. Even if the doctor put that there was a traumatic brain injury, that's irrelevant to a certain extent for the purpose of you implementing the accommodation because we are not medically trained.

 

What we can do is we can receive information from a medically trained professional and adapt that information and translate it into how can we allow this person to now perform the job and perform the essential duties. So when you see that, your best way to support the employee is by asking more questions. So one question I'll have for you, Peter, do you think that billing can be considered one of Amelia's essential duties, knowing that 30% of her job was billing?

 

PETER VLAAR: Yeah, I would say it is, yeah.

 

MELISSA ROTH: So you playing the role of HR, you're telling me we can't do this because billing is one of the essential duties. And when we look at a job description, that's why I said, ideally, you know what those essential duties are before this has come out, but 30% is pretty heavy.

 

Some of the things that the employee may want is that we remove all of the billing duties from her. But now, are we having only 70% of her duties done? Are we going to be able to supplement those duties? Is somebody else going to have to do that? We don't have to get to that. So what we want to do is we want to find out more.

 

So if we go to the next slide, we can see that on the first day of-- I think we've gotten a little too far maybe. No, that's correct. So HR has to reach out to Amelia and HR has to obtain more information to allow the company to determine what those restrictions and limitations are. So we are going to be able to write a letter asking for further and better medical so that we can understand what is needed to allow Amelia to

 

Be trained on the billing software and to perform those essential duties in her position. So in this case, we can provide Amelia with an FAF. Not every FAF is going to be appropriate for the circumstances. So many of you probably know that a lot of the FAFs are physical.

 

And the standard FAF is often missing anything related to cognitive impairments, mental health issues, those kinds of things. So if we provide Amelia with a standard FAF, we're not going to be able to get the right information that we need. So we either create our own FAF, ensuring that includes both cognitive and physical components.

 

And on top of that, nothing is preventing us from asking specific questions about the effects of that traumatic brain injury to be filled out by the doctor. And we may want to bring a caution that more information is required. So in this case, Peter, if you were my client, would you want to send that letter to the family doctor or would you want to receive that information from a different kind of health care practitioner?

 

PETER VLAAR: Yeah, I would certainly want it to be a specialist, someone who is probably a neurologist, someone who's specialized in traumatic brain injuries and the impacts.

 

MELISSA ROTH: Absolutely, absolutely. And that's one of the things, too, that we have to learn to feel comfortable about. And some employers may go the route of asking follow-up questions to the family doctor. Why? Because we don't have anybody else that we know of that we can ask those questions.

 

But you can also engage in the process with the employee. And so you can say to this employee, Amelia, is the family doctor the only person you're seeing? Do you have a neurologist? Are you seeing anyone else? And in engaging in that process, you may find out some useful information.

 

Amelia may say, I haven't seen a neurologist for eight years. So at that point, our assessment of the information that we've received so far will certainly be colored by the fact that we're hearing this from a family doctor that has probably heard it from Amelia. And so we need to dig a little bit deeper.

 

So when you send that letter back, there's a few things that you can do. You can ask for consent for the release of medical information to see if Amelia allows for the communication to go directly between the doctor and the employer with Amelia always copied in those communications. That can often speed up the process. But a lot of employees are very hesitant to consent to the release of their medical information. So they want to be their conduit for providing that information. That often slows down the process.

 

But one way or another, Amelia may not have an option to not provide any more information. So let's say Amelia says, I will not provide any more. You have what you need from my family doctor. Are you going to implement the accommodation that Amelia wants, Peter?

 

PETER VLAAR: No, no. I'm going to hold my ground.

 

MELISSA ROTH: Wonderful. And that's what I want to hear. That's what we want to hear and that's what we want to empower you to do. Now, this may not come without risk. Amelia may turn around and file an application at the Human Rights Tribunal already at this point, in which case, you make sure that you're continuing to engage in the procedural duty to accommodate so that when you are in front of an adjudicator, you can demonstrate all of the great things that you've done so that you have met the procedural duty to accommodate.

 

So you're going to ask specific questions, you're going to ask for restrictions and limitations. You're going to make sure that the doctor that is giving you this information is qualified to make all the assessments. And you're also going to try to ask specific things. So, for instance, let's say that Amelia, in fact, provides you with a doctor's note that says Amelia tells me that she is unable to undergo the training as a result of the side effects of a traumatic brain injury.

 

Well, you have now received a little interesting tidbit of information. The doctor has already provided you with some information to tell-- so when you include, for instance, those specific questions for the doctor to answer, you're also going to be asking things like what is the basis for your opinion? And don't just end it there. Is this based on your objective medical observation? Is this based on testing and analysis? Is this based on self-reporting?

 

Include all of those options, because you'd be surprised. Sometimes, the medical might come back and say, this is based on self-reporting. So if the family doctor comes back with something that says this is based on self-reporting, then that's an opening for you, Peter, to say, well, I now want to hear from your specialist then, as you wanted to hear.

 

You wanted to hear from the specialist. Perhaps you were looking for a way to get there. And sometimes the doctor will not be as honest and they won't tell you that it's based on self-reporting. But you still, as an employer, can ask follow-up questions and can say this information needs to come with someone with specialized knowledge. You can't give me this information.

 

So make sure that you refuse to do things that you're not supposed to do. Make sure that you keep in mind that it is the employer, the one that determines what reasonable accommodation has to be implemented, and not the employee. And make sure that you're also cooperating in the process and you're not sounding obtrusive when you're trying to right back.

 

So if we go to the next slide, you have a little bit of a summary of what we just talked about in terms of asking for further and better medical. And this is very important, and it seems so basic, but you want to make sure that you give the employee clear instructions. And I'm sure you've seen this happen. You give the employee a letter, you tell them to give this letter to their medical professional, and then what they send you back is just a note from the medical professional.

 

So here is a suggestion. You provide a copy of the letter, because in the letter, you're likely also going to set the stage as to the different notes that Amelia has been giving you and the fact that some of them were based on self-reporting. You're going to want to include the job description because that will become relevant to the person that is assessing the capabilities of the employee.

 

And if there's medical that you've received that is unsatisfactory, you should also include it there and make sure that you ask those specific questions. Remember that the goal is for the medical to allow the employer to implement the required accommodation, and not for the employee to dictate what their preferred method of accommodation is.

 

So very briefly on the next slides, because I want to make sure that you have some time for Bettina's scenario on family status. Let's say the specialist FAF and the medical that you received supports the requested accommodation and you can actually accommodate and, in fact, you find a way to allow Amelia to do the training without violating her restrictions and limitations. So you accommodate.

 

Now, if it turns out that what they were asking is the only way to accommodate them, even if it wasn't what you would have liked to do, they're still performing the essential duties, that's the way you go. But if the specialist comes back insufficient or if it's still based on self-reporting, don't hesitate in pushing back again.

 

So you may want to ask clarifying questions, or you may be in a situation where you are going to ask the employee to undergo an IM, or you may be in a situation where you have to deny the accommodation and you're going to have to give reasons for the denial if there is no support for the accommodation.

 

Now, even when you're right in these situations, that always brings exposure, because the employee can still file a claim or can file a human rights application. But at the end of the day, we have to make sure that we're still running our workplace within the parameters of what's reasonable.

 

So let's pretend, briefly, that you deny the accommodation and Amelia then doesn't show up for the first day of training. Now you're going to want to receive some medical from Amelia. And Amelia may provide you with something that, once again, as it can be seen in the next slide, that doesn't give you enough to either justify her absence or implement accommodation. So now, you're in an even more tricky situation because now you have Amelia, perhaps, applying for a certain disability leave because you forced her to do the training.

 

And you may be in one of these scenarios in the slides. Is it insured? If it's insured, are you going to provide the context of the information to the insurer so that when they make a determination on her claim, they are aware of what has been transpiring and how we got to where we got today? Very important. And if it's self-administered, you may be in another situation that while you may be correct in what you have to do, which may be to not allow the time off depending on what the medical is, you may need to deny the benefits as well.

 

So this is a quick scenario to go over some of the things that you may face. But at the end of the day, it's not far from what happens in reality. And the message here is to make sure that you delicately and with compassion push back and you get the information that you need to get. Now, I'll leave it to Bettina to go over her family status scenarios.

 

BETTINA BURGESS: Thank you. I have been furiously typing away answers to the questions that have been coming in, which are amazing questions. You've all been asking really great questions. I haven't had a chance to get to all of them yet. Peter and Melissa, please feel free to zone out of what I'm about to say and answer some of the questions that have come in, because there are still a few more.

 

OK, so disability isn't the only thing under the human rights code that may or may not need to be accommodated. Peter has already talked about religious and creed accommodations. There's another one called family status. And the family status has been identified as the parent-child relationship.

 

So we've got a scenario here. This is a real-life scenario that I had to deal with. Names and places have been changed to camouflage identity. Barb works for Everest Finishing in an IT role. She was hired during the pandemic when everyone was allowed to work from home, but she did sign an agreement that said that at any time she could be required to attend at the office to work either temporarily or permanently.

 

Everest, like many, many employers, implemented a hybrid policy after the pandemic was over now requiring everyone to be in the office two to three days a week. Barb does not like that. She advises Everest that she has a child with a serious disease that requires an adult to be with the child at all times. The daughter is four.

 

The child needs administration of medication constantly. She has feeding tubes. The mom needs to be there, Barb needs to be there to assist in the performance of regular exercises and to generally provide constant supervision. Therefore, Barb is saying I need to work from home.

 

Next slide, please. So the employer comes to me and says, Everest says, do I have to accommodate this? She signed a contract that says she's got to be in the office. Can't I rely on the contract? No, you cannot. The human rights code trumps almost everything. So no matter what you have in writing, forget it if the employee comes to you with a human rights issue.

 

The only thing that trumps human rights entitlements is occupational health and safety. So where the accommodation will result in a health and safety issue, either to the employee requesting the accommodation or other workers, that's the only time anything trumps human rights contracts so far below human rights entitlements.

 

So family status, as I said, is a protected ground under the human rights code. And it's defined as the parent-child relationship. So the employee has kids, you may have to accommodate them if they need to care for their kids in some way, or they have parents, they need to care for their elderly parents. And of course, these definitions are very broad. It doesn't have to be a biological child. It doesn't have to be a biological parent. It could be somebody who is dependent on you. So the definition is broad.

 

Next slide, please. OK, so there's been lots of case law on what does this really mean, this family status accommodation requirement? So the most recent case law indicates that a family status accommodation requirement is triggered where the work rule-- and in this case, Barb's case with Everest, it's Barb has to come into the office two to three times a week.

 

Does that work rule impose a significant negative impact to Barb's family, or does Barb's situation impose a significant negative impact to the work rule due to the employee's family status, or does it pose a serious interference with a substantial parental or other family duty or obligation of the employee?

 

Another way to look at it, and this comes from old cases, which has been relaxed a little bit, as a result of the family status obligation, the parental obligation, does the work rule either, A, result in the employee's inability to care for the child anymore? So let's say Barb does go to work.

 

Does that mean that the four-year-old daughter is without care completely and on her own? Or B, if Barb says, well, no, I have to care for my daughter, therefore I can't work. Is Barb out of work? So that's how we analyze whether or not the duty to accommodate has been triggered in the family status situation.

 

Next slide, please. So as an employer with all things with respect to the duty to accommodate, it's collaborative, and you are able to ask for further information. So for me, in these situations where sometimes employees go a little too far in saying, well, I've got this, and I've got that, and I have to do this, and that's why I need to be able to work from home.

 

Well, then the first question is, how much time are you actually spending caring for your child? Because work from home means work from home. It means work. Whether or not you're at home or in the office, you're supposed to be working. You're not supposed to be caring for your child.

 

So what Barb really may need is a leave of absence so that she can care for her child. If her child requires that much care, then maybe she needs time off from work to be able to care for her child. You don't have to give an employee working time to care for their child.

 

The other questions that you can ask with respect to family status is, OK, what other options are there available for the care of this child? And you can ask those questions even if an employee is saying, I'm on the daycare run, I can't work until 6:00 PM because my child's daycare closes at 4:00 PM.

 

You can go back and say, OK, well, what other options have you explored? Are there third-party daycares available rather than mom being the caregiver? Where's dad in all of this? Dad has an obligation to seek accommodation from his employer as well. Oftentimes what we get back is the other spouse who is in the picture is the significant breadwinner. And so they don't want that individual to have to lose time from work or have to change shifts, whatever, because they make more money.

 

Peter, I believe, mentioned preference. There is absolutely no duty on an employer to accommodate an employee's preference. So lifestyle is actually a preference. So you don't have to accommodate so that the more significant wage earner gets to work to the detriment of your business. So you can push back on that. In this particular case, we sent back a detailed questionnaire to Barb saying you've got to get this completed by your daughter's physician saying, OK, does the caregiver have to be mom?

 

Can it be another adult who is trained to administer medications? Can daughter go to daycare or does the illness require the daughter to be at home? As it turned out, the physician came back with a note saying, no, the daughter is more than capable of going to daycare. A daycare provider could easily be trained to administer the medication and supervise the employee.

 

And when it became very apparent to the employee that the accommodation request was really not something that required mom to be home with the daughter and mom could actually go into work if she was willing to put her daughter into daycare, it became a preference situation as opposed to something that the employer was legally obligated to accommodate because there were other options available for the care of the child, but mom-- and rightly so.

 

What mom wouldn't want to care for the child under those circumstances? Mom wanted to be the caregiver, but the employer doesn't have an obligation to accommodate that preference. So the employer said no, the employee quit. No human rights claim because the employer would very, very likely have been successful. That's it for me on family status.

 

ELISA SCALI: Thank you so much, Bettina, Melissa, and Peter. That was an extremely informative session. And on top of being an informative session, we answered, I think, almost all of the questions. So thank you so much because there were over 20 questions. So I do really appreciate that and I think our attendees will appreciate that as well. Great job. Thank you so much.

 

If you have any additional questions or follow-up, we do encourage you to either connect with your ELE Gowling professional that you're currently working with or don't hesitate to reach out to Bettina, Melissa, or Peter. I'm sure they'd be happy to chat with you if you have any follow-up questions.

 

Now, we do have another seminar coming up or a webinar coming up in October. Please stay tuned because we will be sending out information about that webinar shortly. Your feedback on these webinars is really important to us, so we will be flashing a QR code. There it is. Please just screenshot the QR code and fill out the survey. It's a very short survey.

 

We do appreciate your feedback because we're always trying to improve and we also like to know what we did well. So if you could do that, that would be much appreciated. That concludes our program. Again, thank you to our speakers, and we hope to see you at our next webinar in October. Have a great day.

 

BETTINA BURGESS: Thanks, everyone. Bye, bye.

 

MELISSA ROTH: Thank you.