In what appears another first, Ontario's legislature is examining legislation to impose on employers new duties in respect of employees experiencing abuse or violence at home. Bill 26 proposes to amend the province's Employment Standards Act ("ESA") to require employers to accommodate persons who suffer from domestic or other forms of abuse. The accommodations would take the form of reduced work demands, as necessitated by the person's circumstances.
The heart of the proposed amendments to the ESA is this:
Domestic violence or sexual violence — accommodation
16.1 (1) If an employee or the employee's child has experienced domestic violence or sexual violence, and as a result the employee needs to work at a place of work other than where the employer has assigned the employee, the employer shall accommodate the employee's need unless it would cause the employer undue hardship, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Exception
(2) Subsection (1) does not apply with respect to domestic violence or sexual violence committed by the employee.
Evidence
(3) An employer may require an employee who needs accommodation under subsection (1) to provide evidence reasonable in the circumstances that the employee needs accommodation.
19.1 (1) If an employee or the employee's child has experienced domestic violence or sexual violence, and as a result the employee needs fewer hours of work or needs to work at different times than the employer has assigned the employee, the employer shall accommodate the employee's need unless it would cause the employer undue hardship, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Exception
(2) Subsection (1) does not apply with respect to domestic violence or sexual violence committed by the employee.
Evidence
(3) An employer may require an employee who needs accommodation under subsection (1) to provide evidence reasonable in the circumstances that the employee needs accommodation.
The practical effect of accommodation legislation is to impose upon employers, trade unions and other employees, new burdens: changes to work demands, hours, duties and the like, for a temporary or possibly prolonged period of time to enable the affected person to maintain her or his employment status.
Structurally this legislation is interesting insofar as it incorporates in employment standards law the concept of "accommodation" hitherto used in human rights, accessibility and workers' compensation law.
Employers will need to determine rules for judging when these accommodation requests are warranted, which will often be a highly sensitive and difficult thing. Employers will also have to learn how to prioritize these requests amidst other accommodation requests.
By using "undue hardship" as a test of what an employer must do, the legislation makes it very difficult for most employers to decline accommodation requests rooted in this concern. As the courts have famously said, if an employer must not suffer undue hardship, that means it may have to suffer some hardship.
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