The Duty to Accommodate: Making Sense of the Law on Managing - PowerPoint PPT Presentation

LAWYERS The Duty to Accommodate: Making Sense of the Law on Managing Disabilities in the Workplace Shannon G. Whyley March 23, 2015 Western Canada’s Law Firm

Click to edit Master title style Agenda LAWYERS 1. Introduction 2. Bona Fide Occupational Requirements and Undue Hardship 3. Obligations of Employers, Unions and Employees 4. Accommodating Mental Disabilities 5. Practical Issues 6. Questions www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 1

Click to edit Master title style Introduction LAWYERS 1. Introduction www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 2

Introduction Click to edit Master title style LAWYERS  Developed over last 20 to 25 years  Product of human rights law  Part of the prohibition against discrimination www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

Section 16 Human Rights Click to edit Master title style Code LAWYERS  Comparable provision found in all jurisdictions  Prohibits discrimination in employment www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

The Duty to Accommodate Click to edit Master title style LAWYERS Employers are required to make every reasonable effort, short of undue hardship, to accommodate an employee who comes under a protected ground of discrimination under The Saskatchewan Human Rights Code www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 5

The Duty to Accommodate Click to edit Master title style LAWYERS  Protected Grounds of Discrimination   Religion Colour   Creed Ancestry   Marital Status Nationality   Family Status Place of Origin   Sex Race or perceived race   Sexual Orientation Receipt of public assistance  Disability  Gender identity  Age  “Disability” need not be a work-related illness or injury to be protected under human rights law and trigger the duty to accommodate www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

Disability: Section 2(1)(d.1) Click to edit Master title style Saskatchewan Human Rights Code LAWYERS  Any degree of physical disability, infirmity, malformation, disfigurement, epilepsy, paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, physical reliance on a service animal wheelchair, or other device, intellectual disability or impairment, learning disability or dysfunction, mental disorder  This is a non-exhaustive list www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

Key Principles Click to edit Master title style LAWYERS  Discrimination does not have to be intentional  Not sufficient to treat all employees the same  Duty to accommodate only arises once grounds for accommodation have been established www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

Requirements of the Duty Click to edit Master title style LAWYERS 1. That the employer consider the needs of the employee. 2. That the employer make a reasonable attempt to modify the rule or practice www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

When does Duty arise? Click to edit Master title style LAWYERS  Duty can arise in essentially all employment law contexts  job functions and work schedules  return to work programs (or lack of such)  discipline  performance issues  lay-offs  termination  often performance issues  even if no cause, may have human rights angle  e.g. employee was injured last week and laid off this week www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 10 10

When does Duty arise? Click to edit Master title style LAWYERS Employer must accommodate, unless employer can establish that discriminatory requirement was a bona-fide occupational requirement and to accommodate would cause undue hardship. www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 11 11

Click to edit Master title style BFORs and Undue Hardship LAWYERS 2. Bona fide Occupational Requirements and Undue Hardship www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 12 12

Bona-fide Occupational Click to edit Master title style Requirement LAWYERS  Three part test to justify BFOR:  Adopted for a purpose rationally connected to the performance of the job  Adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate, work-related purpose  Reasonably necessary to accomplish the legitimate work-related purpose www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 13 13

Undue Hardship Click to edit Master title style LAWYERS  Duty to accommodate to the point of undue hardship – not found in section 16 of the Human Rights Code  Concept developed by Courts and tribunals  The O’Malley Case: landmark decision that established duty to accommodate exists only to point of undue hardship www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

Undue Hardship Click to edit Master title style LAWYERS  Flexible concept; intentionally vague  More than minor inconvenience  Can require changing hours of work, modifying job duties, providing physical aids, training, or granting leave of absence  No requirement to fashion a make-work position www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

Undue Hardship Click to edit Master title style LAWYERS  Statute may establish duty; e.g. Saskatchewan Employment Act  Test is objective and should be based on independent opinion, medical evidence, or actual attempts at accommodation  Need to ask “why not?”  Primary onus is on the employer www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

Some Factors to Consider Click to edit Master title style LAWYERS  Financial cost  Health or safety risk  Effect on co-workers  Size and nature of business  Disruption of the collective agreement  Interchangeability of the workforce and facilities  Disruption to the public  Business efficiency www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

Click to edit Master title style Who is entitled to Accommodation? LAWYERS  Regular employees  Probationary employees  Temporary employees  Job applicants www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 18 18

Duty to Accommodate Myths Click to edit Master title style LAWYERS  Employee gets to pick accommodated duties  Employer must always find accommodated duties  Employers are not entitled to medical disclosure  Employers can never win a duty to accommodate case  Pay is red circled if duties reduced to fit restrictions  Employer only has to accommodate workplace injuries  Employee can refuse reasonable accommodation www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 1 9

Click to edit Master title style Obligations LAWYERS 3. Obligations of Employers, Unions and Employees www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 20 20

Specific Obligations Click to edit Master title style LAWYERS  Try to assist the employee to perform his or her job as it currently exists  Try to modify the job  Try to find another job  Try to modify or re-bundle another job  Training  Independent assessment  Tolerating absences www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 2 1

Specific Obligations Click to edit Master title style LAWYERS  Change hours of work  Physical Aids  Leave of absence  Displacing another employee?  Law continues to evolve  What wasn’t required a few years ago may now be required  Human Rights Commission has mandate to push the envelope www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 2 2

Obligations of Employers Click to edit Master title style LAWYERS  What constitutes “reasonable accommodation” is mainly defined by case law  also by statute  s. 2-40 of The Saskatchewan Employment Act  restricts discipline or discharge for certain levels of absenteeism due to illness/injury of employee or family members  whether undue hardship or not  s. 2-41  requires employer, where reasonably practicable, to modify duties or reassign if employee becomes disabled and cannot perform job duties  onus on the employer www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 2 3

Obligations of Employers Click to edit Master title style LAWYERS  In practical terms, the test for accommodation is “why not”  need justifiable reasons  not “we don’t have to” or “this is too disruptive”  may have to try several accommodations www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 2 4

Obligations of the Union Click to edit Master title style LAWYERS  Union can be liable if: (1) party to the discrimination (2) unreasonably blocks the accommodation www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver 2 5