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What is a right to request under employment standards?

With the new Fair Workplaces, Better Jobs Act, 2017 coming into force, new provisions have been put into place. One such provision is the right to request a change to work schedule or location. What are an employer’s obligations under this provision?

right to requestOntario passed into law its Fair Workplaces, Better Jobs Act, 2017 on November 27, 2017, making the most significant changes to employment standards since 2000. As most of you know the amendments include changes to minimum wage, statutory leaves, vacation and scheduling.

Included in the many new requirements for scheduling effective January 1, 2019, is a right to refuse work or to be on call if less than 96 hours of notice are given (except in emergencies) and a minimum three hours’ pay for shifts cancelled with less than 48 hours’ notice (except in emergencies). While many employers may not like the effect of these changes on their ability to have schedules which are flexible enough to meet changing workplace demands, at least the requirements are clear.

The requirements of Section 21.2 in the Employment Standards Act (ESA) are less clear. Section 21.2 states that employees who have been employed for at least three months may submit a written request to change their work location or schedule. An employer who receives a request must discuss it with the employee and notify the employee of its decision within a reasonable time. If requests are granted employees must receive a notification of the commencement and duration of the change. If denied, reasons must be given.

The provision is in response to the need recognized in The Changing Workplace Review – Final Report “that employees have home care, family, and other duties and responsibilities, but at the same time wish continuation of their employment and access to more flexible working arrangements.” Admittedly true, however, the provision does little to address this.

The employer’s obligation under the ESA is simply to “discuss” and “notify”. There is no requirement to consider, try, or use reasonable efforts or good faith (as other jurisdictions have included in their “right to request” provisions) and as such, wouldn’t be reviewable or enforceable under the ESA unless an employer refused to discuss the request or notify an employee of their reasons for denying a request, or retaliated in some way against the employee for making such a request. Laughing an employee out of the office, as long as accompanied by discussion and a written notice of denial with reasons, may indeed meet the requirements (although not recommended).

It is important to note, however, that even though an employer’s obligations under this provision are almost meaningless, it doesn’t lessen an employer’s obligations to accommodate an employee’s request for a change to schedule or work location if the request is for a reason protected by the Ontario Human Rights Code, including family status, disability, religion, subject to undue hardship.

Employers should review their policies on accommodation, hours of work, flexible work arrangements and dispute resolution and ensure that employees are already welcome to discuss their working conditions openly with the employer without fear of reprisal as good workplace policy, rather than vague and unenforceable legislation. As it appears necessary to repeat in almost every blog post, regardless of legislation, we need to treat each other compassionately and fairly.

leftMore information and sample policies about accommodation, hours of work, flexible work arrangements and dispute resolution are available in Human Resources PolicyPro. Request a free, 30-day trial here!

Michele Glassford

President and Managing Editor at DRH and Lawyer at MacKinnon Law Associates
Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of President and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more

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