If you’re planning to decline an employee’s elder care accommodation request, there’s an important step to check off – and it’s one that many employers are forgetting.
“It is extremely important – I can’t underscore it enough – for the employer to be able to show, in the first instance, that they satisfied the procedural duty [to accommodate],” says Filion Wakely Thorup Angeletti partner Meaghen Russell.
Regardless of the outcome of the worker’s accommodation request, HR and employers need to be able to prove they met with the employee, asked the right questions, and requested further information to help them make a decision.
“Can they show they considered options one, two and three, and if the decision is ultimately that they can’t accommodate, up to the point of undue hardship, can they show that they took reasonable steps within the process itself.”
Those documents should include minutes of meetings, notes from conference calls, follow-up emails memos to file about speaking with the employee’s manager, and other pertinent information.
Without a full file of supporting information, an employer can find themselves in a tight spot – and face accusations of discrimination.
“Probably the most important lesson that can be taught or learned by employers is really if you can’t show that you took the steps to consider the accommodation, it doesn’t really matter what happens at the substantive stage, because you’ve already failed in the first procedural duty to accommodate,” Russell warns.
And not only does a paper trail protect an employer if they’re accused of family status discrimination, but it also ensures “you don’t open the flood gates of other claims coming in”, Russell says.
“If employers are rubber stamping these types of requests, really without receiving supporting information, is that going to open the door to other people making similar requests, whether required or not, because they think ‘the first person really didn’t have to provide any support, so if they’re getting their Saturdays off, I’d like mine too’.
“That’s something employers need to keep in mind.”
Meaghen Russell will speak at the Employment Law Masterclass
on September 25.
Why family status is such a big deal
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