Remote work continues to be something that organizations are grappling with. In recent months we’ve seen a reduction in remote work for employees of the federal government, Ontario’s public sector workers mandated to return to the office full-time as of January 1, 2026, and a growing number of employers increasing in-office days, or instituting return-to-office. Often, these changes are met with pushback from employees for a variety of reasons, including employees who request remote work as an accommodation in response to changing work arrangements. Employers must be mindful of their obligations under human rights legislation, including the duty to accommodate employees with disabilities. Failing to do so can result in serious legal consequences—as illustrated in the recent British Colombia Human Rights Tribunal (the “Tribunal”) decision of Flynn v DF Architecture Inc (No. 2) [Flynn].

Background

In Flynn, the employee, who was immunocompromised due to a long-term medical condition, accepted a role with the employer as a project lead and architect in March 2020, with a start date of March 30, 2020. In response to the COVID-19 pandemic, the employer implemented basic safety measures and introduced a hybrid work schedule requiring limited in-office attendance, including alternating in-office days to reduce the number of workers in the office. While the employee was required to work in-office for his first day of work, the employer communicated a work schedule that included two days per week.

Between March 16 and March 30, the employee advised the employer several times that he was immunocompromised and that he was concerned about the in-person schedule. Despite his concerns, the employee attended the office in person on his first day of work, but after observing that other employees were not adhering to social distancing protocols, he left the office early to work remotely from home.

On April 2, 2020, the employer introduced a revised schedule requiring in-office work three days per week. The employee again raised concerns regarding exposure to COVID-19 in the office and requested the employer explore alternative work arrangements. The employer insisted that the employee follow the in-person schedule and did not clearly communicate the steps they were taking to reduce the number of other workers in the office at the same time as the employee or the steps the employer had taken to ensure the workplace was regularly sanitized. The employee resigned on the same day, citing health and safety concerns associated with his medical condition.

The employee filed a complaint with the Tribunal, claiming that the employer had discriminated against him based on his disability, contrary to s.13 of the British Columbia Human Rights Code (The “Code”).

The Tribunal’s Decision

The Tribunal concluded that the employee had a physical disability within the meaning of the Code, and that the employer discriminated against him when they failed to engage in the accommodation process.

The Tribunal rejected the employer’s argument that it was not required to take any steps toward accommodation unless the employee provided a specific diagnosis or made a formal request for accommodation. The Tribunal clarified that an employer’s duty to accommodate is triggered when the employer knows, or ought reasonably to know, that an employee may be experiencing workplace barriers related to a Code protected ground such as disability. In this case, the employee had repeatedly communicated that he was immunocompromised, expressed concern about COVID-19 exposure, and requested alternative work arrangements, which was sufficient to engage the duty to accommodate.

The Tribunal was critical of the employer’s lack of response and failure to initiate any meaningful dialogue or accommodation process. Between the date the employee first raised his concerns and the date he resigned, the employer had several opportunities to engage with him, assess the situation, request further medical information, if needed, and explore possible alternatives—such as remote work, adjusted schedules, or physical distancing assurances. Instead, the employer continued to insist on in-person attendance without clearly explaining the health and safety measures already in place and failed to offer or explore alternative work arrangements.

Conclusion

The Tribunal found that the employer had discriminated against the employee on the basis of physical disability. As a result, the employee was awarded $183,802.59 in lost wages, with the Tribunal noting that the employer failed to provide evidence that employee had not attempted to mitigate his losses. The Tribunal also acknowledged the significant career impact the discrimination had on the employee, particularly in the context of the pandemic and broader economic uncertainty. Additionally, the employee was awarded $25,000 for injury to his dignity, feelings, and self-respect.

This decision serves as a clear reminder that failing to meaningfully engage in the accommodation process, especially when an employee raises disability-related concerns, can result in serious legal consequences for employers.

Takeaways

• Proactively Engage in the Accommodation Process: Should an employee make a request for accommodation that engages a Code protected ground such as disability or family status, employers must ensure they meet their duty to accommodate up to the point of undue hardship. This duty is both procedural and substantive. In addition to what accommodation the employer ultimately implements, it’s important to be mindful of how the employer goes about the process. Employers should take employee requests for accommodation seriously and engage in open dialogue regarding limitations in the workplace and solutions in good faith. A collaborative approach shows a willingness to accommodate and helps avoid assumptions or miscommunications that could lead to discrimination claims.
• Review Employment Agreements and Policies: When consideringa return to office, employers should consider reviewing existing contracts and workplace policies to ensure they clearly state that the employer has reserved the right to alter remote or hybrid work arrangements. If not, the employer would be well advised to consider the risk of demanding a return to the office, and seeking advice with respect to strategies for best managing that risk.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.