THE QUESTION
I have worked at a retail store for nine years. Last year I requested a change in my schedule because of a medical disability.
We all work shifts and I am a full-time employee.
I have submitted many notes from my doctor, and also work-capacity forms, but my employer has not complied with any instructions. I feel they should accommodate me and they say they have to accommodate the business.
Do I have any rights? Should my work comply with my doctor's letters?
I am stressed and frustrated because this has gone on for months.
THE FIRST ANSWER
Michelle Henry Partner with Borden Ladner Gervais LLP, Toronto
While employers have a duty to accommodate employees with disabilities and must make every effort to provide reasonable accommodation, it is important to note that the duty is not unlimited. Providing an employee with specific shifts may be necessary in some instances, and may seem like an easy request to accommodate; however, the reality for many retailers is that it is sometimes beyond the realm of their obligation.
For example, if you are requesting that the employer schedule you for only morning shifts, at a less busy time when additional staff is not required, such accommodation may very well amount to undue hardship for a retailer with very low profit margins. It may not be useful work for the employer and will add additional costs. Similarly, accommodating certain shifts may add unnecessary costs. For instance, if the store is open for eight hours on a Saturday but an employee requests a six-hour shift, the company may then need to schedule another employee and would be required under law to pay this second employee at least three hours' pay.
Employees should also provide sufficient medical documents to substantiate any specific accommodation request. It is not clear whether the medical documents provided to the employer simply indicate that the employee cannot work certain hours without additional information. If that is the case, it may be prudent to provide the employer with more detailed medical documentation, clearly explaining the nature of restrictions and the prognosis for recovery.
Lastly, it is also important to keep in mind that accommodating disability is a multiparty affair – employees also have a duty to co-operate by being flexible and accepting reasonable accommodation provided. Employees cannot insist on a preferred shift where reasonable accommodation has been offered.
THE SECOND ANSWER
Zuleika Sgro Director of people, Saje Natural Wellness, Vancouver
You are a key part of helping your employer understand your need for accommodation.
I would encourage you to supply your employer with all the information necessary to accommodate you. That goes beyond providing doctors' notes to speaking with your employer about what you need to do your job safely. It also includes suggesting solutions.
Keep an open mind and talk to your employer and doctor about the levels and kinds of accommodation available to you. It could mean modifying certain aspects of your job for a certain period of time, at which point the arrangement could be reassessed.
Sitting down with your employer will help him or her better understand your needs and vice versa.
Zuleika Sgro