COLUMN: Working from home: A Human Rights accommodation?

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Starting in 2020, the COVID-19 pandemic caused significant changes in most workplaces. Suddenly, many workers were working from home; some discovered the benefits of this new arrangement, but there were also challenges such as productivity and distractions arising from home life, including the new virtual classroom in our living rooms.

Nonetheless, work had to get done. Employees and employers adapted to these new challenges, and working from home became a common feature. To support this transition, many employers created new policies to establish work-from-home routines, obligations, and logistics.

Since the threats which rattled our realities at the height of the pandemic had passed, now in 2023, more and more employers are asking workers to return to the office. Some workplaces are imposing a return to the office on a full-time basis, while others are exploring hybrid arrangements, alternating between home and office.

But what if the worker is unable to return to the office? Can an employer threaten the employee with dismissal? Not necessarily. If there are human rights factors involved, an employer may be obligated to accommodate the worker by allowing them to work from home. There are two possible human rights grounds that may apply in this situation: disability and family status.

Disability

Employers have a duty to accommodate a worker’s disability/injury to the point of undue hardship. This means that if a worker has physical or mental limitations and restrictions as a result of their disability/injury, the employer has a duty to accommodate such limitations and restrictions. Employers have an obligation to accommodate a worker’s disability, regardless of whether the disability/injury is work-related or not.

The recent case of Mazzariol v. London District Catholic School Board, was regarding a disability. The teacher in this case, was asking for human rights accommodation from their employer to work from home. The teacher’s symptoms included dizziness, nausea, and light and noise sensitivity due to her disability. The symptoms were triggered by certain activities, including driving in a car, being in open, busy, or loud environments such as malls and auditoriums, or spaces with artificial fluorescent lighting. The Human Rights Tribunal decided that the school board had an obligation to accommodate the teacher’s disability in this case by allowing her to work from home. The teacher successfully proved that in her circumstances, she was able to complete all of her essential work duties with less detriment to her health.

Family Status

Parental or family responsibility to care for a child or other family member may be grounds for requesting accommodation in the workplace. Lack of social supports for families, such as adequate childcare, eldercare, and disability supports, may result in more responsibility on working family members.

A recent decision in the case Kovintharajah v. Paragon Linen and Laundry Services Inc., has improved the process for employees seeking accommodation due to family responsibility. Prior to this case, the decision-maker often required the worker to first exhaust all their resources and demonstrate the steps they took before requesting accommodation. Since this case, employers have a duty to consider whether they can make adjustments to help the employee balance work and family responsibilities. Examples of such adjustments include, flexible scheduling, permitting the worker to take leaves of absence to care for family members who are ill or have a disability, and providing access to alternative work arrangements such as working from home.

In short, there may be situations in which employers must accommodate a worker’s need to work from home based on human rights reasons. Even if there is an employment agreement or a collective agreement requiring the worker to physically attend the office, the Human Rights Code overrides such agreements, thereby imposing an obligation to accommodate.

 

The content in this article is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind.

  • Ilija Dimeski is an employment and human rights lawyer. Do you have a workplace issue or question about your rights at work? Write to us. Click hereto begin.

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