1. Your Rights
Yes, the Employer has the right, under its statutory authority, to require a particular occupational group back to the in-person workplace. The Employer also has the right to take the full range of operational requirements, including broad professional, corporate and training responsibilities and roles, into consideration in assessing the need for in-office and/or in-person work.
Your first step should be to have an honest, open, and transparent discussion with your supervisor about your apprehension on going back to the office. One option is to make your case to your supervisor or manager, showing them how productive you have been at home and suggesting a flexible work schedule or a more flexible hybrid option. You should also listen to any concerns they have about operational effectiveness and offer solutions to mitigate them.
If your manager is not receptive to this conversation, you can consider making a formal request for accommodation (see below).
If you need to continue to work remotely, we recommend that you first discuss this with your manager. While the Employer can ask you to return to the workplace, they also have a duty to ensure that your health and safety is protected and must make a reasonable accommodation for you. To this end, you will need to provide to your manager a note from your doctor detailing the specific restrictions or functional limitations preventing you from reporting to work in-person.
A denial of an accommodation based on a disability, medical reason, or family situation could be seen as discriminatory, and might therefore violate your collective agreement. The burden of proof in such a situation lies with you – both to prove the grounds of discrimination and to confirm your specific restrictions or functional limitations. If you believe that your return to the workplace is being handled in a way that puts your health and safety at risk, or is being applied in a discriminatory manner, please do not hesitate to contact our office for advice on your particular situation.
Your right to privacy is to be a primary consideration at all times. If you require accommodation for medical reasons, you are not required to provide management with the diagnosis or intimate details of your disability, you only to provide documentation of the limitations preventing you from returning to the workplace and whether such limitations are permanent or temporary.
You are only entitled to a reasonable accommodation, not a perfect one. Every person’s accommodation is unique. Therefore, it is important to gather as much information as possible, and to document, all communications and conversations with your manager that pertain to the full list of limitations presented by your medical condition.
Yes. We recommended that you consult with one of our Labour Relations Advisors when formally requesting accommodation. Having dealt with the employer on other cases, the Labour Relations Advisor will have a good idea of what information pertaining to limitations the Employer will be seeking in such cases and will be able to support you in this conversation.
2. The Employer’s Responsibilities
The Employer is committed to:
- following the COVID-19 guidance from the Public Service Occupational Health Program
- providing regular COVID-19 updates as information becomes available
- keeping you up to date ahead of any changes to your current situation
- updating their departmental Hazard Prevention Program by continuing to work with their appropriate Occupational Health and Safety committees/representatives to adopt a tailored approach by workplace location, based on the local context for COVID-19, taking into account provincial, territorial, or local guidance
- overseeing operations in consideration of the need to
- be inclusive
- support productivity
- deliver critical services
- ensure mental and physical safety
- respect employees’ accommodation and accessibility requirements
The Employer is bound by a duty to make sure that workplaces are inclusive and allow all workers to participate fully. This duty relates to the 13 prohibited grounds of discrimination identified in the Canadian Human Rights Act.
This duty means that the Employer must design policies, procedures, requirements, standards and practices in such a way that they do not create barriers to employees’ participation. They must also adapt the workplace (physical work space, equipment, workplace rules, practices etc.) to ensure that individual workers can participate fully.
Generally, accommodation is determined on a case-by-case basis. If you are prevented from returning to the workplace by a reason protected by human rights legislation, we strongly encourage you to first discuss the matter with your manager.
If you require an accommodation, it is your responsibility to:
- Tell your manager and/or union representative about your individual circumstances/limitations that relate to one or more protected grounds of discrimination;
- Discuss with your manager changes they can make to accommodate your needs;
- Provide sufficient information about your individual circumstances to justify the change(s) (e.g. medical information verifying a disability and setting out limitations);
- Inform your immediate manager of the nature of the requirements/request and cooperate in good faith in finding a workable solution;
- Fully participate in both the identification of requirements and, where possible, alternatives and solutions;
- Be open to alternative suggestions that meet your needs and be flexible when considering proposals that effectively address limitations;
- Inform your immediate manager when changes are required to an accommodation plan or when the accommodation is no longer necessary.
Accommodation can be a challenging area and needs may change over time.
The Employer is required to:
- Consider your request for accommodation in good faith;
- Work with you to canvass and consider alternative approaches and possible accommodations;
- Maintain confidentiality;
- Request only the information needed to respond to the accommodation request (i.e. information related to the nature of the limitation or restriction);
- Recognize that an employee requesting accommodation, who has yet to obtain a diagnosis and/or a physician’s letter outlining functional limitations and restrictions, is still entitled to interim/ informal/temporary accommodation;
- Grant accommodation requests in a timely manner, to the point of undue hardship;
- Recognize and respectfully approach those employees who may need accommodation but who have not asked.
The Employer is not obligated to:
- Create an unnecessary job;
- Remove an aspect of a position which is absolutely essential (Bona Fide Occupational Requirement)
- Retain an employee if reasonable accommodations do not result in employee being able to meet their responsibilities;
- Hire someone who would not be able to successfully do the job even with accommodation.
3. The Role of Your Union
PAFSO advocates for overall fairness and for consistent application of the collective agreement and applicable legislation in this and all other areas. We work directly with the departments and in concert with other unions as part of the National Joint Council.
Specifically, PAFSO is here for you throughout the accommodation process. We are here to assist you in:
- Reviewing policies, procedures, practices and activities to identify and to remove discriminatory barriers.
- Ensuring that the collective agreement does not discriminate against employees.
- Fostering a safe environment in which accommodation needs may be communicated and respected.
- Supporting employees in requesting accommodation when approached.
Your union is here for you and you have a right to request the involvement of a PAFSO representative for advice or assistance regarding your request for accommodation. And in all cases, your right to confidentiality will always be respected.
For questions concerning the specific implementation of the return to workplace plan, please contact your manager.