Canadian HR Reporter

CANADIAN HR REPORTER June 1, 2015 FEATURES 15 EMPLOYMENT LAW Accommodating an aging workforce With people staying at work longer, employers should know options, obligations By Trevor Lawson T he workforce, and the population as a whole, are aging. Statistics Canada has projected that by 2021, one in four employees will be 55 or old- er. With employees staying in the workforce longer, certain pres- sures and concerns in relation to older workers are unavoidable. Prior to the end of mandatory re- tirement across Canada, the ter- mination of an older employee's employment was not a major concern for employers — it could simply wait until the employee turned 65 and require her to re- tire. Today, that's no longer an op- tion, except in regards to specific types of work such as policing, firefighting and aviation, where a mandatory retirement policy is considered a bona fide occupa- tional requirement. As a result, employers must tackle the issue of how to accom- modate older employees who suffer age-related issues such as reduced skills, abilities and health. Duty to accommodate Because being 65 or over is a pro- tected ground of discrimination, employers have a duty to accom- modate workers who suffer age- related health issues that diminish their ability to perform the duties of their position. Such employees must be accommodated to the point of undue hardship. e duty to accommodate re- quires an employer to recognize and consider the individual's abilities and limitations. Accord- ingly, employers must make an individualized assessment of an older employee's needs and ca- pabilities and adjust his job or the workplace to accommodate those needs and capabilities, un- less such accommodation would cause undue hardship. Further adjustments may be required over time to meet the employee's changing needs and capabilities. In meeting its duty to accom- modate, an employer must first assess the nature and degree of accommodation that is required. at generally involves gathering information regarding the limi- tations on the older employee's skills and capabilities and the re- quirements of his job. e employer must then con- sider what, if any, accommoda- tion is available, and justify any accommodation that is offered or not offered on the basis it would constitute undue hardship. Common options While each individual case will have its own specific risks, issues and considerations, an employer will be usually be required to con- sider measures such as flexible hours and work arrangements, reduced duties or hours, or differ- ent positions for older employees whose performance or health has declined. If an older employee finds a physically demanding task chal- lenging, an employer may be re- quired to assign the task to some- one else (if it is not part of the essential duties of the position) or seek other ways to accommodate the person. An employer is not required to make up a new job or to keep an employee in a position if she cannot perform its essential duties. That said, employers are re- quired to take a comprehensive and flexible approach in coming up with reasonable accommoda- tions for an older employee. Al- though the list is not exhaustive, accommodation options com- monly considered include: • flexible work hours • compressed work weeks • teleworking • job sharing • employing employees who have elected to retire on a short-term basis • training • lateral moves to jobs that are better suited to the employees' reduced capabilities • part-time working arrangements • phased retirement • lateral mentoring and coaching positions to help with succession plans • demotions into less demanding or stressful positions • short or fixed-term contracts. e duty to accommodate is an ongoing process that may require an employer to revisit the accom- modation measures initially pro- vided from time to time and to adjust them as necessary. As part of their accommodation, older employees may also require re- freshers, retraining or upgrading of their skills. Undue hardship Undue hardship refers not only to financial hardship but accommo- dations that are overly extensive or disruptive to the workplace, change the nature or operation of a business, endanger the health or safety of the employee concerned or other employees, or affect mo- rale or bargaining unit rights. In assessing whether an older em- ployee can be accommodated without causing the employer undue hardship, the following fac- tors will generally be considered: • financial cost, including the im- pact on efficiency, cost of reno- vations or adaptive technologies • disruption to the terms of a col- lective agreement and the degree of such disruption • impact on the job functions of other employees and morale problems that may result • interchangeability of the work force and facilities • size of the employer's operation • safety concerns, including the likelihood of the risk, its mag- nitude, and who would bear the risk (such as whether it is the dis- abled employee, all employees or the public) • whether the employee's job itself exacerbates the disability. Employees, unions It is important to note the respon- sibility of accommodation does not rest entirely with an employer. Employees are required to partici- pate in their own accommodation. Such co-operation generally requires an employee to provide medical information, be flexible in considering accommodations of- fered by the employer and to ac- cept reasonable accommodations offered by the employer, even if it is not the form of accommodation preferred by the employee. Em- ployees are not entitled to perfect accommodation. Where accommodation results in a lesser job or fewer hours, an employer is entitled to adjust wages or salary accordingly. If the employee is unionized, his bargaining agent is also required to co-operate in the employee's accommodation, and to consider accommodations that may violate the seniority provisions and other terms of a collective agreement where necessary. In order for an employer to be able to demonstrate it has fulfilled its duty to accommodate an older employee, it is essential to fully document all the steps it takes, including the information it re- quested, obtained and reviewed, and each accommodation option that was considered. e increasing number of older employees remaining in the work- place longer gives rise to a height- ened potential for human rights issues. Employers should develop proactive strategies for dealing with an aging workforce to avoid the potentially costly consequenc- es of not doing so. Trevor Lawson is a partner at Mc- Carthy Tétrault in Toronto. He can be reached at tlawson@mccarthy.ca. Find these suppliers and more in the HR Vendors Guide – your source for human resources vendors, suppliers, consultants and professional development from across Canada. Visit www.hrreporter.com/hr-vendors-guide HR VENDORS GUIDE HR VENDORS GUIDE Are you looking for help with recruitment? Training and development? Recognition? Information on HR professional development and post- secondary programs? The responsibility of accommodation does not rest entirely with an employer. Employees are required to participate.

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