Employment Section of the Act
Government of New Brunswick
Frequently Asked Questions
with regard to Employment
Employment Section of the Act
a. What do we do about conflicting accommodations? The employer’s duty to accommodate is to the point of undue hardship. Depending upon the size and the nature of the workplace, and the number of employees needing accommodation, an employer may meet the threshold of undue hardship at some point. Typically, accommodation is on a first come first serve basis, however, if longstanding accommodations are required and new employee requests are submitted, an employer may request updated medical information supporting the need for the continuing of the longstanding accommodation as accommodation needs may change over time.
a. When it is ascertained that the employee cannot do the functions as an EA even in a modified form, the employer should look into a new position in the same bargaining unit. If no position exists, the employer would look into other bargaining units for a position. If an employer is able to show that the only way that this person can be accommodated is to put him or her in an unfilled position, then the union has a duty to assist in the accommodation process, which would include putting the person in that position regardless of seniority in the collective agreement.
b. With regard to the person’s seniority, it may be required that the person carries his or her seniority into the new bargaining unit.
c. The duty to accommodate trumps the collective agreement as long as the employer can show that there was no other possible accommodation for the employee. The law requires as little impact on a collective agreement as possible. However, when there is no alternative, the duty to accommodate supersedes the collective agreement.
d. An employer should ensure it has documented all the possible solutions/positions that the employee could do in light of their education, training and physical capabilities, and why these positions were not reasonable for the employee.
17. I have many employees. We do 24-hour shifts. I need to have 10 employees on at all times. I have several requests from employees requesting not to work nights. Ten employees are already being accommodated based on a protected ground. What do I do with the 11th person requesting the accommodation? Do I need to accommodate? Do I need to remove one employee?
You may also want to obtain updated documentation supporting the other employees' continued need for accommodation as that may result in confirmation that the employee no longer needs the accommodation.
However, if the employer suspects that the employee may have a mental disability but is refusing to acknowledge that they have one, the employer should approach the employee on more than one occasion to discuss the employer’s observations regarding performance and the possible impact that they could have on a continuing employment relationship. There may be a duty to accommodate if an employer knows or reasonably ought to have known that an employee requires accommodation. If the employee refuses accommodation(s), then the employer has done their due diligence. A good practice would be for the employer to document all actions taken. The employer may want to contact the Commission for further information regarding their duty to accommodate in situations like this.
Outside of the obligations under the Act, employers also have a common-law duty to provide a safe and harassment-free workplace. Therefore, the employer may want to determine the impact of the rumour(s) on the workplace and/or individuals before deciding what actions they may or may not take regarding them.
a. What about alcohol testing? No, alcohol testing during pre-employment is not permitted. However, during the course of employment, if there is a workplace accident and it is suspected that alcohol was a factor, the employer may require the employee to undergo alcohol testing only if that employee is in a safety-sensitive position.
The employee also has a responsibility to participate in the accommodation process and has an obligation to accept reasonable accommodation. If it is determined that the employee does not require an individual fridge as a result of the fridge’s use by other employees, then that employee has an obligation to accept the accommodation being offered.
The employer’s duty to accommodate is to the point of undue hardship and you may be entitled to reasonable accommodation, but not necessarily a perfect solution.
Typically, the employer should approach the employee who has excessive body odour delicately and advise the employee of the concern and/or impact of the employee’s body odour in the workplace. The employer may want to inquire of the employee if they have a medical condition that is causing the issue and whether or not the employee is attempting to take steps to address the odour.
Depending upon the size of your organization, you may easily be able to ensure that these two individuals (employee and patron) do not have interaction(s) with one another. However, if you have very few employees, you may want to discuss with the employee who has the phobia whether or not they are comfortable with you disclosing this information to the patron so that you can facilitate accommodation of both individuals. You may want to advise the patron that you intend to provide a barrier free service to the patron but that you may need advance notice of when the patron intends to use the service in order to accommodate the employee.
Disclaimer – The answers to these questions are not to be considered as legal advice or a substitute for legal advice and if there is any conflict between the answers to these questions and the Act and/or case law interpreting the Act, the Act and case law prevail. Direct any questions regarding this guideline to the Commission’s staff.