Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com with Stuart Rudner Ask an Expert RUDNER LAW TORONTO Canadian HR Reporter, a Thomson Reuters business 2018 2 |January 31, 2018 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Staying in touch with employees on long-term disability leave Question: How frequently should an employer communicate with an employee on long-term disability benefits, and what should it do if such an employee hasn't responded to communication attempts for a while? Answer: Employees that are off work due to a disability must remain in regular contact with their employer, and are obligated to respond to reasonable requests for information. Obviously, every situation will be fact specific, and in some cases it will be reason- able to allow months to pass without com- munication. Employers should avoid ha- rassing the employee or otherwise adding to their stress through frequent and unwar- ranted communications, or requests for in- formation that is extraneous or redundant. at said, sometimes employees go on leave and then "disappear." We often quote our clients through the situations. If we are advising the individual, we make sure they understand that they must respond to com- munications that are reasonable, and that failure to do so could lead to cancellation of the leave, which is a form of accommo- dation. at is particularly true where the individual refuses to provide medical docu- mentation to support the ongoing leave. We also coached our employer clients on how to deal with these situations by enforc- ing their rights without trampling on those of the employee. If an employee fails to respond to commu- nications, we work with our client to pro- vide clear and detailed warnings of the con- sequences of a continued failure to respond, which will culminate in the termination of the employment relationship. It is critical that the employee be given fair warning that her employment may be in jeopardy if the employer doesn't hear from her. WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as employee off-duty conduct, benefits during the notice period, and Ontario's new employment law changes. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. In some cases it will be reasonable to allow months to pass without communication. Accommodation requests from job candidates Question: Does an employer have to grant an accommodation request from a job candidate who hasn't yet been hired? If the candidate isn't hired, how does it make clear the request wasn't a factor in the decision? Answer: Legislation such as the Accessi- bility for Ontarians With Disabilities Act (AODA) in Ontario, for example, requires that employers accommodate candidates for employment, not just employees. is accommodation begins during the hiring process, when employers must make it clear that accommodation is available for anyone who needs it, even if they're not yet working for the employer. A refusal to hire someone based upon a ground that is protected by human rights legislation will constitute discrimination and a breach of the job candidate's human rights. A refusal to accommodate someone based upon such a ground is equally discriminato- ry and unlawful. If a candidate has a need for accommodation and informs the employer about it, the employer must assess the need and, if it is legitimate, the options available for accommodation must also be assessed. e employer will have a duty to accom- modate someone unless it can show that there is either a bona fide occupational re- quirement, or that accommodation would result in undue hardship for the employer. A employer's decision not to hire a job candidate must be based fully on the can- didate's qualifications and not any need for accommodation the candidate has ex- pressed or other protected ground under applicable human rights legislation. Detailed documentation in this regard is critical, and it is not sufficient to simply say that "we can't do it." at said, employees are not entitled to their preferred form of accommodation. Employers are entitled to assess the options available and choose one that is reasonable and works best within their circumstances. Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He is the author of You're Fired: Just Cause for Dismissal in Canada published by Car- swell, a omson Reuters business. He can be reached at stuart@rudnerlaw.com or (416) 864-8500. Accommodation begins during the hiring process, when employers must make it clear that accommodation is available.

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