duty to accommodate (2012 08) - ohrc - cmha opening doors facilitator training
TRANSCRIPT
August 2, 2012 1
The Duty to Accommodate
2Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Accommodation Principles
Respect for dignity
Treat people as individuals
Right to integration and full participation
These guide both procedural and substantive accommodation
3Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Achieving Integration
Inclusive design
Barrier removal
Accommodate remaining needs
4Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Accommodation
Accommodation often occurs based on the following Code grounds:
Disability Sex (including pregnancy) Gender identity & gender expression Creed Family status Age
5Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Question
What rules, requirements, policies or standards exist that may seem neutral, but have an adverse impact or disadvantage people with mental health disabilities or addictions? On people based on other Code grounds?
6Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Bona Fide Requirements(s. 11)
Standard, rule, requirement or factor: Purpose rationally connected to
function? Adopted in good faith? Reasonably necessary in the sense
that it is impossible to accommodate without undue hardship?
7Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Appropriate Accommodation
Separate from undue hardship analysis
Continuum Promotes three principles Equal opportunity to attain same level
of performance or enjoy same level of benefits and privileges
Proposed or adopted for purpose of achieving equal opportunity
8Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Accommodation Seeker
Inform the accommodation provider of their needs
Co-operate in obtaining necessary information
Participate in discussions about solutions
Work with the other parties on an ongoing basis to manage the process
9Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Accommodation Providers
Accept accommodation requests in good faith
Request only information required to make accommodation
Obtain expert advice where necessary Bear the cost of any required medical
information or documentation
10Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Accommodation Providers
Maintain confidentiality of persons seeking accommodation
Take an active role in ensuring possible solutions are examined
Deal with accommodation requests in a timely way
11Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Limits of Accommodation
Accommodation need not be provided if it causes “undue hardship”
Standard for undue hardship is a high one
Onus of proof is on the accommodation provider
12Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Limits of Accommodation
FACTORS NOT CONSIDERED Business inconvenience Resentment or hostility from co-
workers Operation of collective agreements Customer “preferences”
13Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Limits of Accommodation
FACTORS CONSIDERED Costs Outside sources of funding Health and Safety
14Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Costs
Quantifiable Related to the accommodation Look at whole organization, not
just branch/unit Altering the essential nature or
affecting viability of business
15Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Minimizing Costs
Recover/distribute costs Immediate versus phased-in Reserve funds Outside sources of funding Creative design solutions
16Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Health and Safety
Requirements bona fide and reasonable Look at alternate means of
accommodation to avoid risk Assess nature/severity/probability/scope
of risk Risk assessed after precautions have
been taken to reduce it Does risk remaining after accommodation
outweigh benefits of enhancing equality?
17Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Assessing Risk
Nature of risk (what could happen that would be harmful?)
Severity of risk (how serious would the harm be if it occurred?)
Probability of risk (how likely is it that the potential harm will actually occur?)
Real risk, or merely hypothetical or speculative? could it occur frequently?
Scope of risk (who will be affected by the event if it occurs?)
18Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Assumption of Risk
An accommodation seeker may wish to take on some degree of risk:
Is person fully informed of risk? How serious is the risk? Is there a risk to anyone else?
19Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Question
What are forms of accommodation thatmight be relevant to someone with a mentalhealth issue in: Employment Housing Services?
What are forms of accommodation based onother Code grounds?
20Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Types of Accommodation: Employment
Modified facilities Modified job duties Flexible policies, procedures Technical or human support Time off Alternate formats Alternate methods of assessment
21Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Types of Accommodation: Housing
Modified units, common elements Flexible policies, procedures Considering alternative rental criteria Third-party support Alternate formats of communication Taking disability into account as a
mitigating factor
22Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Types of Accommodation: Services
Flexible deadlines, or extra time given Quiet service environment Human support Multiple ways of contacting the organization Facilitating or providing support for
decision-making Accessible forms and application
procedures Flexibility in scheduling appointments Considering disability as a mitigating factor
August 2, 2012 23
BREAK
August 2, 2012 24
Scenarios
25Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Scenarios
Ground Social Area Discriminatory effect? Issues, principles, considerations Problems, or anything else you need
to know in order to assess? What could be done, or should have
been done differently?
26Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Scenario #1
A person with a mental health disability asks her landlord for an accommodation. The landlord tells her that before he can accommodate her, he requires that she give him her medical diagnosis.
27Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Scenario #2
A newly hired employee discloses that he has bipolar disorder and asks his employer to call his wife and doctor if they notice anything unusual in his behaviour. He also states that he may need to take a few days off if this happens. His employer is concerned that he did not tell them this when he applied. A few days later, the employee starts exhibiting strange behaviour, and the company dismisses him on the basis that his high security position requires someone who can handle stress, and is stable and available.
28Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Scenario #3
A person who is a newcomer to Canada gets taken to a mental health hospital by police. He does not speak English and requests a language interpreter. The hospital has a policy only to provide services in English and French. ASL interpreters are provided if needed for someone’s disability. As a result, the doctor does an assessment without an interpreter present.
29Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Scenario #4
A person with a mental health disability applies for work using a supported employment agency. The supported employment agency tells her that she is not ready for employment because she has recently been released from hospital, and does not recommend her for a position.
30Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Scenario #5
A woman with schizophrenia shows erratic behaviour in her apartment, such as yelling in the night, putting her TV out in the hallway, and leaving papers on the stove burners. The landlord, concerned about health and safety, evicts her for disturbing the “reasonable enjoyment of the premises” of other tenants.
31Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Scenario #6
After a few weeks of being on a job placed by a supported employment agency, the employer tells the agency that “it’s not working out” because the employee with a mental health issue needs more time than other workers to learn the position. The supported employment agency depends on good relationships with its employers. They agree to place the person somewhere else.
32Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Scenario #7A man who identifies as Muslim is in a forensic mental health facility. He shares a room and eats his meals with other patients. Due to his religious requirements, he requests halal meals and that he be given a private space to pray several times a day. Because of the side effects of his medication, he also has difficulty eating his whole meal in the time given to patients at meal times (all meals are supervised by staff). Because of this, he is losing weight.
The hospital denies the requests for a special diet and a place to pray because they lack available staff to respond to individualized meal requests, and they don’t have extra space in the facility. They say that special requests are often difficult to agree to because they lack staff to provide the extra supervision that may be required due to possible health and safety concerns.
33Ontario Human Rights CommissionCommission ontarienne des droits de la personne
Opening Doors
August 2 & 3, 2012
Scenario #8
An addictions counselor’s coworkers start to notice that she comes to work visibly under the influence of alcohol. The employee starts cancelling her counseling appointments unexpectedly. Shortly thereafter, the manager confronts the employee, who denies that she is using alcohol. The employer terminates the employee’s job, stating she is a health and safety risk to her clients and cannot perform the essential duties of her position.
August 2, 2012 34
Questions?