Accommodation the second time around

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Accommodation can present a challenge to employers when confronted with the prospect of an employee who requests it, whether it’s because of a physical disability, medical condition or family status. While all must acknowledge the legal requirement and the human right to accommodation, trying to determine the second part of the duty to accommodate — to the point of undue hardship — can cause major headaches.

The point of undue hardship depends on different factors which make it different for every employer and employee. It can depend on any combination of things, such as the employee’s job duties, staffing levels and the employer’s financial situation to name a few. There have been many cases where the employer refused to accommodate an employee because it thought it had reached the point of undue hardship, only to have a court find, upon further examination, the employer could have gone to further lengths.

But here’s an interesting situation: A female employee gets pregnant and is diagnosed with a condition that means it will be a difficult pregnancy and she should stay away from any physically demanding or stressful situations. The employer agrees to accommodate her by allowing her to work from home in a more low-key environment where she can rest frequently.

A couple of years later, the employee becomes pregnant again, with the same concerns. However, she’s in a different job for the same employer, with different tasks. The employer offers several options for accommodation by assigning her other less-strenuous tasks, but working from home isn’t an option this time around. The employee refuses, saying the jobs aren’t equivalent or too physically demanding and she thinks working from home again is the best and safest option.

Determing the level of accommodation to which an employee is entitled can be a complicated process, but it can be muddied further if the employer isn’t able to offer the same accommodation a second time around. If an employee is accommodated one way during an illness or disability, should the employee expect to be accommodated the same way if it happens again? Is the employer obligated to use the same method of accommodation for the same circumstances once it’s established for an employee, or is each circumstance separate and unique? In the case above, the employee was in a different position, but what if it was the employer’s circumstances, such as staffing levels or financial situation that changed rather than the employee’s job?

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