Canadian HR Strategy

28 Executive Series Digest hrreporter.com costs Canadian businesses about $12 bil- lion per year in health claims, lost pro- ductivity and absenteeism. Legal implications of the sandwich generation In order to avoid or lessen the costs as- sociated with the sandwich generation, employers need to take a proactive ap- proach when managing these people, particularly with respect to the following issues: •Family status accommodation: Family status is one of the prohibited grounds under human rights legislation. It has come to the forefront over the past year as a result of two signifi cant court decisions. e fi rst was the landmark Federal Court decision of Canada (Attorney Gen- eral) v. Johnstone, which involved an em- ployee's denied request for a fi xed-shi schedule to accommodate her childcare needs. e court held that requests for childcare accommodations stem from genuine need and are not a result of lifestyle choices, requiring employers to canvass accommodation options. While it did not receive the same fan- fare as Johnstone, a case from the Ontario Human Rights Tribunal, Devaney v. ZRV Holdings Limited, stands for the proposi- tion that an employer similarly has a legal obligation to accommodate an employee who has eldercare responsibilities. e employee in this case was dis- missed a er 27 years' service due to the absences he incurred to take care of his disabled mother. At the ensuing human rights hearing, the tribunal found the employee was discriminated against due to the employer's strict attendance policy, and the employer's failure to engage in a dialogue with him about his caregiver needs. We know from these decisions that caregiver responsibilities are recognized and protected under human rights leg- islation. at means an employer needs to have a meaningful dialogue with the employee requesting accommodation to assess the scope of his caregiver respon- sibilities and canvass the options that can best meet his needs. ese decisions also remind employ- ees that accommodation is available, provided they have a caregiver need as opposed to a preference or choice over caregiving options. Employees should not expect the ideal response to their re- quest for accommodation and be aware accommodation is a two-way street — requiring them to provide employers with information that will assist in iden- tifying reasonable accommodation. •Accommodating stress, anxiety and mental health issues: e study found 57 per cent of caregiver employees reported high levels of stress and 36 per cent reported high levels of depressed mood. As a result, when employers re- ceive requests for modifi ed duties or hours or other forms of accommodation, we assist them in determining whether the request may be related to a disability or mental health issue. is process can already be time-consuming and cumber- some, and may soon become even more onerous. A national standard released in Can- ada earlier this year represents a depar- ture from what we may have understood about accommodating mental illness by now including stress and anxiety as part of the "mental illness" defi nition. e Canadian Standards Associa- tion's National Standard on Psychologi- cal Health and Safety in the Workplace is intended to be a voluntary guideline for Canadian employers to use to promote mental health in the workplace. Despite its objectives and voluntary nature, the standard contemplates obli- gations that are signifi cantly more exten- sive than those prescribed under current workplace health and safety legislation by requiring employers to ensure "psy- chological job fi t" and work-life balance. For example, it broadly defi nes men- tal health as a "state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a con- tribution to his or her community." Although some provinces have add- ed workplace violence and harassment provisions to applicable statutes, those additions do not go so far as to require employers to eliminate violence and ha- rassment entirely, much less guarantee "psychologically safe" workplaces. While the standard does not have EMPLOYMENT LAW

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