Employers who find they have to draw a line over accommodating an employee with a disability can find themselves facing an uphill legal battle over whether they tried hard enough.
Companies must prove they couldn’t afford the cost, or there were health and safety risks, from accommodating a worker’s needs - but that’s a “very, very high threshold”, says Asha Rampersad of Bernardi Human Resource Law.
If an employee takes sick leave, their employer needs to document their return to work process, see what kinds of accommodations they need, and creating an individual accommodation plan.
Rampersad also recommends “sitting down with them to clarify ‘what is it that you need from us’, and letting them talk about what the nature of their disability is, and then asking for the required medical documentation ... Once they get that information, then the ball is in the employer’s court to say ‘ok, what can I do to this employee’s position, can it be adjusted some way?’”
The process can be hugely onerous, but inconvenience doesn’t equate to undue hardship.
“It’s a really tough threshold,” Rampersad says.
“The biggest challenge that employers are having in a case that’s typically not successful is what they’re not really doing a lot is fulfilling that procedural duty to accommodate.”
Employers who fail to meet their obligations can be found liable for discrimination, and face financial penalties, so it's important to "have a paper trail" showing all the efforts undertaken.
“In the event that you ever get a human rights complaint filed against you … and [you] don’t have any steps in terms of what [you’ve] offered the employee, that’s where I see liability, and it’s usually a difficult conversation I need to have with them,” Rampersad says.
“There are cases where it really will be undue hardship for employers to accommodate. In those cases, it’s extra important that they have to document the steps that they’ve taken.
“If they don’t have any of that, then there’s no way they’re going to be able to succeed in an argument that there’s undue hardship.”
Learn more about accommodation and preparing an undue hardship defence at the Employment Law Masterclass
on September 25, 2017.
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