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

SLIDE 1

Western Canada’s Law Firm

LAWYERS

The Duty to Accommodate:

Making Sense of the Law on Managing Disabilities in the Workplace

Shannon G. Whyley March 23, 2015

SLIDE 2

www.mlt.com

Click to edit Master title style

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

Agenda

1

SLIDE 3

www.mlt.com

Click to edit Master title style

1. Introduction

Introduction

2

SLIDE 4

www.mlt.com

Click to edit Master title style

Developed over last 20 to 25 years
Product of human rights law
Part of the prohibition against discrimination

Introduction

SLIDE 5

www.mlt.com

Click to edit Master title style

Comparable provision found in all jurisdictions
Prohibits discrimination in employment

Section 16 Human Rights Code

SLIDE 6

www.mlt.com

Click to edit Master title style

Employers are required to make every reasonable effort, short

f undue hardship, to accommodate an employee who comes

under a protected ground of discrimination under The Saskatchewan Human Rights Code

The Duty to Accommodate

5

SLIDE 7

www.mlt.com

Click to edit Master title style

Protected Grounds of Discrimination
“Disability” need not be a work-related illness or injury to

be protected under human rights law and trigger the duty to accommodate

The Duty to Accommodate

Religion
Creed
Marital Status
Family Status
Sex
Sexual Orientation
Disability
Age
Colour
Ancestry
Nationality
Place of Origin
Race or perceived race
Receipt of public

assistance

Gender identity

SLIDE 8

www.mlt.com

Click to edit Master title style

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

Disability: Section 2(1)(d.1) Saskatchewan Human Rights Code

SLIDE 9

www.mlt.com

Click to edit Master title style

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

Key Principles

SLIDE 10

www.mlt.com

Click to edit Master title style

1. That the employer consider the needs of the employee.
2. That the employer make a reasonable attempt to modify

the rule or practice

Requirements of the Duty

SLIDE 11

www.mlt.com

Click to edit Master title style

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

When does Duty arise?

10 10

SLIDE 12

www.mlt.com

Click to edit Master title style

Employer must accommodate, unless employer can establish that discriminatory requirement was a bona-fide

ccupational requirement and to accommodate would

cause undue hardship.

When does Duty arise?

11 11

SLIDE 13

www.mlt.com

Click to edit Master title style

2. Bona fide Occupational

Requirements and Undue Hardship

BFORs and Undue Hardship

12 12

SLIDE 14

www.mlt.com

Click to edit Master title style

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

Bona-fide Occupational Requirement

13 13

SLIDE 15

www.mlt.com

Click to edit Master title style

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

Undue Hardship

SLIDE 16

www.mlt.com

Click to edit Master title style

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

Undue Hardship

SLIDE 17

www.mlt.com

Click to edit Master title style

Statute may establish duty; e.g. Saskatchewan

Employment Act

Test is objective and should be based on independent
pinion, medical evidence, or actual attempts at

accommodation

Need to ask “why not?”
Primary onus is on the employer

Undue Hardship

SLIDE 18

www.mlt.com

Click to edit Master title style

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

Some Factors to Consider

SLIDE 19

www.mlt.com

Click to edit Master title style

Regular employees
Probationary employees
Temporary employees
Job applicants

Who is entitled to Accommodation?

18 18

SLIDE 20

www.mlt.com

Click to edit Master title style

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

Duty to Accommodate Myths

1 9

SLIDE 21

www.mlt.com

Click to edit Master title style

3. Obligations of Employers,

Unions and Employees

Obligations

20 20

SLIDE 22

www.mlt.com

Click to edit Master title style

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

Specific Obligations

2 1

SLIDE 23

www.mlt.com

Click to edit Master title style

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

Specific Obligations

2 2

SLIDE 24

www.mlt.com

Click to edit Master title style

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

nus on the employer

Obligations of Employers

2 3

SLIDE 25

www.mlt.com

Click to edit Master title style

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

Obligations of Employers

2 4

SLIDE 26

www.mlt.com

Click to edit Master title style

Union can be liable if:

(1) party to the discrimination (2) unreasonably blocks the accommodation

Obligations of the Union

2 5

SLIDE 27

www.mlt.com

Click to edit Master title style

Union can assist the process
Union has a duty to co-operate in accommodation
Not required to create undue hardship on other

members

If it has a significant effect on rights of others
Unions should not overlook these principles
By taking the position seniority cannot be overridden
Note: duty to accommodate trumps seniority

Obligations of the Union

2 6

SLIDE 28

www.mlt.com

Click to edit Master title style

Must co-operate
Must advise employer of capabilities and

restrictions

Cannot insist on perfect solution
Cannot insist on improvement of pay or position
Refusal to accept accommodation may lead to

termination

Must provide reasonable explanation for refusal

Obligations of Employees

2 7

SLIDE 29

www.mlt.com

Click to edit Master title style

Usually must bring need for accommodation to

attention of employer

Sometimes not readily apparent
Employer query:
whether to investigate and invoke duty where not may have
therwise existed
“Duty to Inquire”

Obligations of Employees

28 28

SLIDE 30

www.mlt.com

Click to edit Master title style

Mental Disability
Mental illness
Addiction
Illnesses with social stigma
Give rise to “Duty to Inquire”
If there is evidence that employer knew or reasonably
ught to have known that the employee is suffering

from a mental illness, disability or addiction, the duty to inquire is triggered

Duty to Inquire

29 29

SLIDE 31

www.mlt.com

Click to edit Master title style

4. Accommodating Mental

Disabilities

Accommodating Mental Disabilities

30 30

SLIDE 32

www.mlt.com

Click to edit Master title style

Each case is unique, but generally:
Verify that employee has mental disability
Establish nexus between mental disability and

the misconduct/behaviour

If there is nexus, did mental disability cause or

contribute to all the misconduct or only some aspect

f it?
Search for accommodation options
Undue hardship?

Accommodating Mental Disability

31 31

SLIDE 33

www.mlt.com

Click to edit Master title style

Facts:
8 year employee suffered from depression and had been treated

with medication and therapy, but didn’t inform employer

Displayed mood swings and irritability, also frequently second

guessed and undermined superiors. Received written warning for insubordination

After receiving warning, employee took 2 months of stress leave.

Prior to stress leave, informed manager of depression

Upon returning, had another incident of insubordination and was

dismissed

At no time was employee’s past incidents of insubordination

reviewed to determine if mental illness was involved

MacKenzie v Jace Holdings (2012 BCHRT)

32 32

SLIDE 34

www.mlt.com

Click to edit Master title style

Test for prima facie discrimination – Employee must show:
1. Disability exists
2. Suffered adverse treatment
3. Evidence from which it is reasonable to infer that disability was

factor in adverse treatment

Question was whether the disability impacted the reason

for her dismissal (i.e., whether nexus existed between disability and her insubordinate behaviour)

33 33

MacKenzie v Jace Holdings (2012 BCHRT)

SLIDE 35

www.mlt.com

Click to edit Master title style

Tribunal found that at least 3 managers knew of

employee’s depression but made no further inquiries to determine whether it impacted work performance

“No effort appears to have been made by Thrifty’s to

determine how Ms. Mackenzie’s disability affected her work performance or whether accommodation may be required”

34 34

MacKenzie v Jace Holdings (2012 BCHRT)

SLIDE 36

www.mlt.com

Click to edit Master title style

Employer argued that it was a BFOR that each

employee comply with employer policies, including the insubordination policy

Tribunal found that employer failed to provide

evidence that accommodating employee would impose an undue hardship

35 35

MacKenzie v Jace Holdings (2012 BCHRT)

SLIDE 37

www.mlt.com

Click to edit Master title style

Facts:
Employee with Asperger’s Syndrome was hired as a call centre
agent. Position involved a 90-day probationary period
As part of his on-line application he filled out a diversity form and

answered “yes” when asked if he had a disability

Employee claimed he told the employee who interviewed him

about his disability as well as his supervisors

During a meeting with his manager to discuss his performance, the

employee told the manager his performance problems were related to his “condition”. Employer terminated the employee prior to the end of probationary period because he was unsuitable for the position

Telecommunications Workers Union v Telus Communications Inc. (2014 ABCA)

3 6

SLIDE 38

www.mlt.com

Click to edit Master title style

Court of Appeal found:
The test for prima facie discrimination is met:
1. Disability exists
2. Suffered adverse treatment
3. Evidence from which it is reasonable to infer that disability was factor

in adverse treatment

Test for prima facie discrimination does not include “knowledge”
Employer’s knowledge of an employee's disability in regard to

adverse-effect discrimination is unnecessary because "[b]y definition, adverse-effect discrimination is the uniform application

f a seemingly neutral employment policy to all employees,

regardless of whether some employees have protected

characteristics. The impugned policy applies to a disabled

employee whether or not the employer knows about the disability".

Telecommunications Workers Union v Telus Communications Inc. (2014 ABCA)

3 7

SLIDE 39

www.mlt.com

Click to edit Master title style

Court of Appeal found:
There was no suitable accommodation that would allow the

employee to satisfy the employer’s performance requirements, given the manner in which the employee’s Asperger’s affected his performance.

Employer did not have to accommodate a probationary employee

by finding him a different position.

The authorities “suggest that probationary employees need only be

accommodated within the scope of their position for which they were hired"

Telecommunications Workers Union v Telus Communications Inc. (2014 ABCA)

3 8

SLIDE 40

www.mlt.com

Click to edit Master title style

5. Practical Issues

Practical Issues

39 39

SLIDE 41

www.mlt.com

Click to edit Master title style

Education and training programs
Internal review of policies and practices
Develop protocol for handling requests
Conduct thorough investigation
Know all of the facts

Practical Issues

SLIDE 42

www.mlt.com

Click to edit Master title style

Investigate precise nature of the characteristic requiring

accommodation

Identify precisely what accommodation may be required
Consider all alternatives
Ask “why not?”

Practical Issues

SLIDE 43

www.mlt.com

Click to edit Master title style

Be able to demonstrate alternatives that were considered
r tried
Involve the union and the employee
Consider what the employee can and cannot do
Collective agreement may not be the last word

Practical Issues

SLIDE 44

www.mlt.com

Click to edit Master title style

Courts, arbitration boards and tribunals have broad

remedial authority including reinstatement

Legal process may occur years after the event
When in doubt call your lawyer

Practical Issues

SLIDE 45

www.mlt.com

Click to edit Master title style

Practical Scenarios

SLIDE 46

www.mlt.com

Click to edit Master title style

6. Questions?

Questions

45 45

SLIDE 47

www.mlt.com

Click to edit Master title style

REGINA 1500 Hill Centre 1 1874 Scarth Street Regina SK S4P 4E9 Phone: 306.347.8000 CALGARY 1600 Centennial Place 520 - 3 Avenue SW Calgary AB T2P 0R3 Phone: 403.693.4300

rd

SASKATOON 1500 Saskatoon Square 410 - 22 Street East Saskatoon SK S7K 5T6 Phone: 306.975.7100

nd

EDMONTON Suite 2200 10235 - 101 Street Edmonton AB T5J 3G1 Phone: 780.969.3500

st

VANCOUVER Suite 1800 355 Burrard Street Vancouver BC V6C 2G8 Phone: 604.882.7737

Western Canada’s Law Firm