Reply To: Fixed Term Contracts – Duty to Accommodate

[Haley O’Halloran]

#95480

This is a nuanced situation involving fixed-term employment, layoffs, and accommodation obligations under human rights law. Here’s a detailed breakdown of the legal and practical considerations:

1. Human Rights and Duty to Accommodate
Under the BC Human Rights Code and WorkSafeBC policies, employers have a duty to accommodate employees who are injured or disabled, to the point of undue hardship. This obligation can extend beyond the original term of employment, especially when the employee was still participating in a return-to-work program due to a workplace injury.

Key Implication:
If you are recalling other laid-off employees, excluding the accommodated employee could be seen as discriminatory, especially if the only reason for exclusion is their disability status or ongoing accommodation needs.

2. Fixed-Term Contract Expiry During Layoff
The expiry of the fixed-term contract during the layoff is significant, but it does not automatically end your duty to accommodate. Courts and tribunals have recognized that employers cannot rely solely on contractual terms to avoid human rights obligations.

If you are effectively reinstating the same role or a similar one, and you extended contracts for others, failing to do the same for the accommodated employee could expose the organization to legal liability (e.g., for discrimination or failure to accommodate).

3. Recall Obligations and Layoffs
If the employee was laid off with others due to lack of inventory, this in itself is not discriminatory. But once the recall process starts:

If you are recalling others to similar roles, you should give serious consideration to recalling the employee on accommodation.

This is especially important if the position still exists or is being reoffered.

Even if the original fixed-term contract expired, you may be viewed as offering a new employment opportunity, and you must do so in a non-discriminatory manner.

4. Best Practices
To avoid allegations of discrimination:

-Offer re-employment to the accommodated employee, assuming the role is available and can support the accommodation.
-Document your efforts to accommodate and your rationale for any decision made.
-If you have concerns about operational feasibility of accommodation under the new circumstances, you should assess and document the undue hardship involved.

You may also want to consult legal counsel or an employment law expert to confirm your specific risks and obligations.

Read more about the duty to accommodate here.

-HRInsider Staff