Accommodations: When Do Employers Need to Accommodate?

Gowling WLG partner Neena Gupta returns to Coffee ‘n’ Law this week to explore what employer accommodation means from a legal perspective. Neena and host Amy Davies discuss how accommodations can exist in many forms, from modified duties and adjusted schedules to leaves of absence, and why the process requires thoughtful analysis, collaboration, and documentation.

The conversation also covers common and evolving accommodation requests, including work-from-home arrangements, and Neena explains what employers are entitled to ask for in terms of documentation. 

Connect with Neena Gupta:
On LinkedIn: linkedin.com/in/neena-gupta-0107aa4
Email: neena.gupta@gowlingwlg.com
Visit Gowling WLG's website: www.gowlingwlg.com

Connect with Amy Davies:
On LinkedIn: linkedin.com/in/daviesamy
Email: amy@first30ready.com
Visit First30's website: www.first30ready.com

HR Law Canada
Stay up to date with employment law news by subscribing to HR Law Canada: www.hrlawcanada.com

This podcast is produced by Storyphora, www.storyphora.com, info@storyphora.com

#amydavies #neenagupta #coffeenlaw #employmentlaw #HRleaders #workplacelaw #employmentaccommodation 

Transcript

Neena Gupta 0:00

I have never, never wanted people to be represented more than I do in this AI era because you, you know, the lawyer on the other side can at least um tell their clients what's realistic in an accommodation scenario. Uh it's somebody who can explain you're entitled, for example, to reasonable accommodation, but not perfect or preferred accommodation.

Amy Davies 0:31

Workplace law is complex and constantly changing. It can be hard to keep up, and the risk of getting it wrong can be costly for businesses. The Coffee and Law Podcast is here to help HR professionals and employers stay informed. We'll cover what's changing and how to navigate real workplace situations and everyday people decisions. So grab your favorite warm drink and join us for engaging practical and educational conversations with top experts in workplace and employment law.

Brent Jensen 1:05

This podcast provides high-level general information. The perspectives shared by our guests are for educational purposes and do not constitute legal advice. If you have a specific question or concern, please consult a qualified lawyer.

Amy Davies 1:21

Hi everyone, it's Amy Davies, founder and CEO of First30, and also your Coffee in Law podcast host here. To remind you that First 30 offers career transition and outplacement services. So if you have terminations and layoffs coming up, this is a really good way to mitigate risk to your business and help your exiting employees recover from the job loss and get back to work. You can find out more information at www.first30ready.com forward slash outplacement, or you can reach out to me, Amy Amy, at first30ready.com. All of our programs include live coaching and a year of access. And in a tough job market, that can be very important. Now, back to our show. Welcome back to Coffee and Law, everyone. Very happy to have Nina Gupta back from Gallu. What's wrong with my speaking today? Gowling W L G. This does not bode well for the rest of the episode, Nina, if I can't even get that out. But thank you for joining. I want to just say a very quick thanks to HR Law Canada, who are our partners on the podcast. They're amazing. If you haven't had the chance to check out HR Law Canada's content yet, I really recommend a visit. We are going to be talking about accommodations today. And Nina, I don't know if you've noticed, but they tend to have a lot of great articles on this topic and many, many more related to all of the things that we talk about on this podcast. So definitely go and check that out. And of course, please subscribe to our channel. Give us a like, give us a five-star rating if you're listening. We really do appreciate it. And it goes a very long way. The podcast is really growing. And uh we thank you all for your support. And one more person I want our organization, I want to thank is Story4, who does the production for a podcast. Uh, they're so great to work with. So, with all that out of the way, Nina, I'm really interested in this topic. Uh, it's one that's coming up more and more. People are learning quite rightly um how to advocate for themselves in the workplace more and more. And then that means that employers are noticing things and often doing what needs to be done or what they think is the right thing to do. Uh, but they're also getting a lot of requests for different accommodations that potentially haven't been coming in before. So I think this is a really important episode. And I think it's also good to tune in as an employee as well. You might learn a lot from this uh from this content too.

Neena Gupta 4:16

Absolutely. I think that some of the hardest work that I do is dealing with issues of accommodation and what is fair and reasonable in the special circumstances that the employee has put on the table.

Amy Davies 4:31

Mm-hmm. Yeah. And you know, I really want to start the conversation by asking, what is the legal definition of accommodation? Because we hear it coming up, as I said, more and more in the workplace. But when does it actually apply and what does it mean?

Neena Gupta 4:49

Okay, so let's start with a little bit of law 101. So law 101, I'm going to try not to make it boring, is that the idea is that within certain reasonable limits, an employer has the right to set the terms and conditions of employment. When does work start, how it's done, when it ends, whether you do it in the office or on the road or from your home? Um, what kinds of duties you have, whether you're working in the warehouse or typing in the typing pool, if we even have one of those anymore? It is the employer's decision to say, I need a person to do this set of jobs and tasks. And that was the norm. Now, what happens if somebody can do, quote, the essential duties of their job, unquote, but cannot do certain ones because of a legitimate reason. And a legitimate reason is a human rights protected ground, which could include family status. I can't start work right at eight o'clock because my daycare doesn't open till 7:30. And with the commute time, it takes me an hour to get into work, and therefore I can't get in before 8:30. So even though the employer has a right to say your shifts is eight to five or whatever, there's a request for accommodation to start half an hour late. It could be somebody has a temporary or permanent injury, so a disability, which means that they can't perhaps drive or lift or carry the way that you would normally expect. And is there something we can do about that, either temporarily or permanently? So I used to joke, but it's actually true, almost every written or unwritten term or condition of employment could theoretically be considered a barrier to somebody who has a legitimate protected ground, right? So then the question is how much of the employee circumstances that are protected by law, such as their family circumstances, their health, religious observations, can we accommodate? How can we change how the job is done, when the job is done, what tools are used so the person can continue to do the essential duties of their job to the reasonable satisfaction of the employer? So accommodation refers to that whole process and also to that those changes that we might elect. So, for example, if we I have an assistant who might need some accommodation because they have some elder care responsibilities or some health issues, can I give this assistant some flexibility in hours? Now that might be easy to do in a law firm where it doesn't really matter to me personally whether something gets done between two and three o'clock and five and six o'clock. It doesn't matter. But what if you're in an assembly line and she's a widget maker and she has to make her widgets from 8.30 to 3.30 so that the evening widget finishers come in at 3.30 and finish it to 11:30 so that the distribution people pick it up at midnight and distribute it for the next morning, then it becomes a much more difficult analysis, right? Because then it might be interfering not just with how she gets her work done, but also with others. And that whole process of thinking that through is an accommodation process.

Amy Davies 8:24

Now, just I'm sure people listening are like, there are just so many questions that are popping up just based on this one little piece of the conversation. So I do have a question around what if you started in a job? I'm thinking of someone, let's say someone who makes deliveries for a company, and that required as part of their job, they're required to lift heavy, um, heavy items to deliver to customers. Okay. Now, I know we're gonna talk about what happens if you're injured at work, but let's set that aside for a moment. You over time develop a really bad back and you can no longer lift the uh items that is it's part of your job. So effectively, you actually can no longer do your job. Your employer only has that job for you. Now, what what happens?

Neena Gupta 9:19

So let's just unpack that a little bit because it is a workplace injury. And so while we don't have the time, every province has a workplace insurance program. There are different obligations or or additional obligations, if you will, that you need to be mindful of when it's a workplace injury. But let us take that, and I've actually had that scenario. Some delivery companies have essentially roots that are known to be heavy, i.e., you're delivering cases of um bottled water and soft drinks. And so those are notoriously heavy, but they also have uh light deliveries. And so the first thing you look at is can you change up the route so the person is doing um less heavy work? Is there some work in the warehouse or in the office that they could do? Because it's not just you first look at whether or not you can accommodate into their old position, but then you also look at whether or not there's any available positions that they could be accommodated into. It's only when you've gone through that process and you have to almost show your homework. It's like, you know, grade 10 mathematics. It's not enough to know the answer. You have to show oh, you got there, and you have to have a conversation, especially in Ontario, where we have the accommodations for Ontarians with Disabilities Act. There's a procedural obligation to have a conversation and engage with the employee to discuss what they think might be a good accommodation and to see what it is. Now, one accommodation we haven't talked about yet is giving people leaves of absences, because maybe this person deserves to be on either a workplace injury leave or just a short-term and long-term leave to allow their back to heal up. And we keep their job open. We, you know, maybe backfill with a temp or a summer employee while the person is healing. So one thing we have to really, really grapple with is is this a temporary accommodation or is this likely to be permanent? And the analysis is very different because if something is permanent and it's really hard to say, oh, I'll give them a permanent leave for the rest of their life, you know, like that's not gonna happen, right? But uh, but if it's like, you know, the doctors say it's gonna take four to six, you know, months to heal. And, you know, maybe it's a knee injury, that's why it's not working. But once the knee surgery is over, then you might have a different analysis because you might be able to give a leave. It's an and maybe an unpaid leave if it's not workplace, it may be a paid leave through WSIB or WCB, depending what province you're in, and then the person comes back. So we need to think about leaves and we need to think about alternate jobs and alternate ways of doing the job. Like, so maybe is there a way of having a different kind of cart that takes on more of the weight? So the person isn't, you know, like isn't handling all of that weight all of the time. Uh for those of you who are listening from Waterloo Region, uh, you will know that Waterloo Region just went to the automatic garbage uh bins. In other words, the the bins are standard sized and the garbage truck has, you know, crap um clamps and they pick up the bin and empty it themselves. Well, that reduces the back stress enormously. That's one of the reasons why those are very attractive to municipalities because it completely reduces that chronic back stress that you see. So all of this has to be thought about. And it gets very confusing and very difficult for HR. So I have two tips. One is document everything and don't be afraid to ask for more information and finally get outside help. There are people who know way more than, quite frankly, your lawyer or the doctors about assistive devices and accommodations, and they can be really helpful about getting people back to work.

Amy Davies 13:20

I think when people say the word accommodations, sometimes everyone kind of um panics because they think, oh my goodness, it's gonna be so expensive and complicated. And then it turns out it's so simple and inexpensive to make the accommodation. Um, and all that worry was was for not. Now, I I made a little mistake when I was talking because I did realize that I brought up someone making deliveries and they could say, claim, you know, rightfully so, that that happened on the job. So that that was a bit of a disconnect. Now, what if someone has been injured outside of the workplace and needs an accommodation inside the workplace? How does that change things?

Neena Gupta 14:08

Okay, so take your example, which I don't think was a misdirect. I think it was really important to identify that employers have special obligations under the workplace compensation systems of their province, because quite frankly, the longer an employee doesn't work, uh, the more expensive your insurance ratings get. And there are additional duties to return people to work under various regimes. But let's just assume it's your scenario. Your second scenario is, you know, somebody was out playing hockey and got really badly injured, uh, they've injured their back and now they need accommodation. That under the Human Rights Code is still an illness or disability that deserves accommodation. Obviously, it's not going to trigger workplace compensation, reporting duties, or um other return to work obligations. But your general duties under the Ontario Human Rights Code and its sister legislation across the province is the same. You still have to accommodate to the point of undue hardship. And what is undue hardship, of course, is in the eye of the beholder.

Amy Davies 15:15

Outplacement and career transition support make a real difference for employees experiencing terminations or layoffs. Offering these services also reduces legal and reputational risk for employers. All of First30's outplacement programs include access to a live coach along with one year of access to our career transition portal, job search resources, and much more. Programs start at $985 per participant. You can find information about our programs and pricing at first30ready.com forward slash outplacement or reach out to us anytime at info at first30ready.com. Speaking of being in the eye of the beholder, what if you're challenged with a situation where you have an employee asking for an accommodation that you don't sense is legitimate? They might feel it's legitimate, but I guess just like, what is the threshold? And how, and you mentioned don't be afraid to ask for documentation. What is the employer entitled to do in a situation where they're like, okay, and I'll give you an example. So we there's a lot of debate about uh back to the office, right? And you know, there's people who feel they have a legitimate claim to work from home, even though let's say they're Nina Gupta has done, has worked with the employer on their employment agreement. So we know it's absolutely perf picture perfect. Um, but they're they are asking for uh accommodations to work from home. Um, and and it's doesn't just something's not sitting well. Uh it just doesn't feel like an appropriate accommodation to give in an employment, in an employment situation where you actually do need people in the office a certain times uh in the week or all week potentially.

Neena Gupta 17:15

Post-COVID, I'm seeing a lot more requests for work from home because more work can be done from home. There were things that simply could not have been done from home in 2019 that we can easily do from home in 2025. Work from home, in fact, is a legitimate type of accommodation. It isn't necessarily a right of the employee, but it's definitely one of the accommodations an employer should look at. So you look at, well, what is the requy the employee requesting accommodation? Is it a health reason, in which case we can ask for health documentation either from the healthcare practitioner? Or if you're really suspicious, pony up, get an independent medical evaluation to see whether or not this is legitimate.

Amy Davies 18:06

Many of the cases Can I ask a question that I think people listening might have about the documentation? What type of documentation would be considered sufficient? Because I think there may be a lot of confusion around that.

Neena Gupta 18:22

So you are not entitled to diagnosis. So I am not entitled to know whether the employees restrict medical restrictions are caused by an uh by, let's say, uh sexually transmitted disease, cancer, or uh, you know, like uh like an actual, you know, a fracture. I may be entitled to know generally whether it is a mental health issue or a lower back issue, but in general, we're not entitled to the diagnosis. What we are entitled to are the medically established limitations. And what I really strongly encourage employers to do is to instead of send a standard form, create questions you want answered. And they typically are something like, what are the medical restrictions that you've observed? I don't, I don't want to just have a doctor regurgitate. You know, my emplo my client, my patient says, What have you observed? How long are they likely to, you know, last? Can we expect some improvement? And if so, in what time frame? Um, you're asking for the restrictions. What are the restrictions? So sometimes a restriction can be, you know, um, is not able to drive or is not able to work at heights because of balance issues. We're not entitled to know whether the balance issue is due to a brain cancer or mener's disease or something else, but we are entitled to know that those are medical restrictions. Now the person may say, that means I have to work from home. Your response will be, well, there's public transit. And so there may be a conversation about what is appropriate. I've had situations where employers have correctly said, when it's, let's say, not medical, a lot of the times it's family care obligations, right? Like daycare, elder care. I've had employers say, look, we will give you a temporary accommodation three months, six months, but our expectation is that you will find alternatives to your current situation so that you can, in fact, come into the office because that's net, you know, there's office work to be done. During COVID, I had uh a very specific example where somebody used to live in Kitchener, decided that this would be a great opportunity to sell their Kitchener home and uh move permanently into cottage country. And I can't even remember where cottage country was, but it was not commuting distance to Kitchener Waterloo. And then she essentially said, Well, I now need accommodation because um, you know, I'm finding the five-hour a day drive to be, you know, physically very difficult. I bet I'm sure it is. And we worked some, you know, we essentially said, Well, we'll give you that accommodation, but you're gonna have to change. You know, your decision to move out of the city was not because of us. You made that decision. So we'll give you a reasonable time to move back into within reasonable, and that that essentially, you know, essentially helped broker a settlement. So we have to be a little creative. But remember, um, undue hardship is a very high standard. And essentially, it typically ends up meaning it's too expensive, or we're gonna have to hire somebody either part time or full time to do part of the job, or she's really not doing, or he's not doing the essential duties of their job. So if you've got a receptionist and they want to work from home, and a part of their job is greeting visitors who come in person, setting Up the boardrooms, cleaning up, you know, lunch and dinner plates, um, you know, showing the caterers where to do it. I mean, all of that work could probably be split up with other people, but that's the person's job as receptionist. And so if she can't do that, those essential duties, you may have a situation where she goes on leave for a while, or he essentially ultimately we have a situation of frustration of employment.

Amy Davies 22:27

Yeah, and it's uh it's funny to say, but I think that um AI tools even make it more complicated because people are probably getting a lot of their education about all of this from AI on both sides. On both sides.

Neena Gupta 22:40

Like, like, and yeah, I use AI, Amy. I love AI, but AI is a great tool when it's used by a sophisticated user because it does, does generate a lot of junk. I've had cases where AI gives me this wonderful brief, and I'm going, oh, and then it refers to a case that I happen to know. Like I actually argued the case or I presented on the case at a bar association meeting. I'm like, I don't remember that from that case. And then I look at the case, it has nothing to do, but AI cheerfully put it in and really like it, you know, because it's so beautifully formatted and it's so well articulated that it's persuasive. And then you're looking at it, but it's a bunch of hooey. The problem with AI is you get a lot of letters or demands that are generated by AI. And I know every HR person is struggling with a volume of work where, yes, you can generate a garbage claim via AI, but our response has to be accurate.

Amy Davies 23:40

It does empower people too, because they think this sounds articulate, this sounds like something that will pass. But then experts like you come in and you're able to make sense of it and help people. Um, may they may even get information that's not from the the jurisdiction that they're in, right? Or the province or state that they're in.

Neena Gupta 24:01

And a lot of people are uh getting AI that uh, you know, no fault of their own is relying on American sources. And uh, as you may know, American damage awards tend to be significantly higher than Canadian damage awards. In the Canadian Human Rights Act, for example, there's effectively a $40,000 upper limit on awards, financial awards, right? That's a very low limit. While in the states, multi-million dollar judgments are not unheard of. So I'll see a demand letter for you failed to accommodate me and now I want a million dollars, and the person doesn't have a lawyer. I have never, never wanted people to be represented more than I do in this AI era, because you, you know, the lawyer on the other side can at least um tell their clients what's realistic uh in an accommodation scenario. Uh it's somebody who can explain you're entitled, for example, to reasonable accommodation, but not perfect or preferred accommodation.

Amy Davies 25:07

Is there like a top three of the most common accommodations that are requested that uh employers should really educate themselves on that you can think of? Maybe that's a very difficult question, but I would think work from home would be the one of the top ones.

Neena Gupta 25:23

So one of the ones that I find people struggle with is uh the um pregnancy accommodation. And in I've had situations and in workplaces that are blue-collar that essentially take the position, well, you know, it's not our fault you were pregnant and it's uh, you know, something you voluntarily did. It's not like an accident you suffered, so it's not our problem. If somebody has a pregnancy-related medical condition that needs accommodation, it's treated like any other illness, like cancer or a broken leg. And the fact that the person wanted, the woman wanted to be pregnant and have a child does not alleviate the employer from the duty to accommodate. I didn't think I would have to explain this, you know, 35 years after I started practicing law, but that one is one that people still seem to struggle with. Secondly, family status accommodation, child care accommodation is in fact a legitimate reason to ask for variation. So the fact that our school system tends to work from 9 to 9:30 to 3:30, that childcare is difficult to find, that people don't always live in a jurisdiction where they have family support. And even if they have family support, those family members may be working, so they're not available five days a week. Um, that may need accommodation. The third is when there are ill members in the family. People are very sympathetic and understanding when the employee themselves is facing a health crisis. But we also have a duty to accommodate when employees are the caregivers or emotional support for children, spouses, and and um uh and parents. And so there is a duty to accommodate. And we see changes to both the Employment Standards Act, workplace compensation systems, and to human rights jurisprudence to try to remind employers that employees have lives, and that while you still have a right to expect an honest day's work for an honest day's pay, you also have to accommodate the whole individual. I think a hundred years ago, that would not be the case. The case is this is the job, you take it or leave it, and if you don't like it the way it is, just leave. That is not the case in 2026.

Amy Davies 28:02

Well, and this, okay, this might seem silly and uh but self-serving because as you know, I'm a very proud, well, I'm very proud parent, people parent, but I'm also very proud pet parent. And there's less and people are um waiting to have kids, not having kids as much, and their pets become their children. Ask anyone how enthusiastic I am about my my dog Jagger. Is is it a legit? I mean, it might seem like a silly question, but it's being asked in workplaces. Are there any accommodation entitlements for pets at this point? And what do you think will future will hold?

Neena Gupta 28:39

So, to the best of my knowledge, um, while um we have all sorts of leaves for human members of your family, you do not have that for the pet members of your family yet. Smart employers have flexible pay time off arrangements where people can use some of that pay time off to take care of uh your uh four-legged family members. And absolutely, people are extremely close to their four-legged uh um family members. And I remember when I lost my first cat and I was at work and I was just a basket case, and I was just really mad that I just couldn't focus. And it was my friends at work said, Look, you know, that's a member of your family, and that you've lost. Just go home and just take a moment to breathe. Yeah, right.

Amy Davies 29:31

You needed your paw reavement leave.

Neena Gupta 29:33

I needed my paw reavement leave, and I just needed just to kind of process it, right?

Amy Davies 29:39

Yeah. Well, we have I have one more question for you, and then I'd love to hear our spill the tea. But my last question is are there any decisions or emerging trends that we should be aware of when it uh comes to accommodations? Or are we sort of where it's it is where it is right now. We don't know what's coming next.

Neena Gupta 29:58

I think the trend is that employers are going to have to justify when they say no, right? They're gonna have to show that, you know, they really tried and sincerely tried. And only after all those choices failed did they say no, and then they went to the next step. And that no could be, okay, you're gonna have to take a leave, or this relationship isn't viable. The other thing you need to maybe think about is what job the employee has makes a real difference. There's a real understanding that if somebody's a CFO, a CEO, a general manager, we may need to replace that person very quickly because the business cannot survive very long without a CEO, CFO, or senior operations manager. If the person's a receptionist, a warehouse worker, or a driver, there's much less sympathy about saying, oh well, we couldn't possibly hold their job open and get a temp. Of course, you can get a temp for somebody like that. May not be as good as the job you could get otherwise, but there are solutions. So position matters, and that's coming out in the case law very clearly.

Amy Davies 31:13

Um, so do your homework and document that what I'm hearing is document, document, document. And then document again.

Neena Gupta 31:22

Yes. And get your okay and get your help. Get your lawyer, get your consultants in.

Amy Davies 31:26

Get your lawyer always. Yes. Now, I need my uh spill the tea. I need some tea, Nina.

Neena Gupta 31:36

Yes, you need some tea. So, well, I mean, I wanted to well when I tell the story, I want everybody to know that most um accommodation requests are completely legitimate. Uh, it may be that what the employee proposes is a little bit too much, but the actual basis is legitimate. But my favorite story is somebody who um, you know, claimed to need child care um accommodation, but was really using that as an excuse to go travel um back to their home country. And in fact, uh was working remotely from a different country. And the company had a um, you can work remotely, but you have to be stay in the province of Ontario policy. Um, and they were pretty clear about that. They might allow a week or two, but they wouldn't allow more. But they used the, oh, I need to work remotely because I have child care issues that are really difficult. And then the company found out that the person was actually working from a jurisdiction they would not have been permitted to work from. And it was the IT officer who said, Do you know why we're getting all these, you know, logins from a internet address that's in India? And that's how we caught it. So I just uh thought that was a fun one where uh there may have been some, and they then they say, Well, you know, I had child care in India and that's why, but you didn't disclose that you were getting your childcare in India where you knew we had a policy that you couldn't work outside of the jurisdiction for various reasons. So most requests are legitimate, but every to every so often employees try to push it a little bit.

Amy Davies 33:23

Well, it just reminds me it's very different, but going uh there's a through line here with the pets. But I if you ever watch a show Veeep, yes, of course, she had someone on her communications team who was always having to leave early because he needed to take care of his dog. He didn't even have a dog, it turned out. So sorry, spoiler alert, but it's been, you know, that show's been finished for some. Yeah, yeah.

Neena Gupta 33:48

If you don't know that plot line now, uh, too bad, so sad.

Amy Davies 33:52

Yeah. Well, it just makes me think of I it's funny. And I I agree with what you're saying though. You know, 95% of the requests people are making are are absolutely legitimate and need to be uh thoroughly reviewed and in many cases supported for sure. Um, but that I thought that was just a really funny part of the show. It perfectly fit with this character. Well, listen, thank you so much, everyone, for listening. Nina, as always, thank you. And I'll also make sure to mention our partners again, HR Law Canada, and our wonderful producers at Story Fora. Uh, until next time, um, we'll look forward to seeing you. Take care.