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The Duty to Accommodate: Making Sense of the Law on Managing Disabilities in the Workplace Shannon G. Whyley March 23, 2015

www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

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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

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1. Introduction

Introduction

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Developed over last 20 to 25 years

Product of human rights law

Part of the prohibition against discrimination

Introduction



Comparable provision found in all jurisdictions

Prohibits discrimination in employment

Section 16 Human Rights Code



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

The Duty to Accommodate

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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



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



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



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



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?

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

occupational requirement and to accommodate would cause undue hardship.

When does Duty arise?

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2. Bona fide Occupational Requirements and Undue

Hardship

BFORs and Undue Hardship

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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

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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



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



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

Undue Hardship



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



Regular employees

Probationary employees

Temporary employees

Job applicants

Who is entitled to Accommodation?

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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

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3. Obligations of Employers, Unions and Employees

Obligations

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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

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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

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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

Obligations of Employers

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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

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Union can be liable if:

(1) party to the discrimination

(2) unreasonably blocks the accommodation

Obligations of the Union

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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

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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

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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 otherwise existed

“Duty to Inquire”

Obligations of Employees

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Mental Disability Mental illness Addiction Illnesses with social stigma

Give rise to “Duty to Inquire” If there is evidence that employer knew or reasonably

ought to have known that the employee is suffering from a mental illness, disability or addiction, the duty to inquire is triggered

Duty to Inquire

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4. Accommodating Mental Disabilities

Accommodating Mental Disabilities

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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 of it?

Search for accommodation options Undue hardship?

Accommodating Mental Disability

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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)

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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)

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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”

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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

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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)

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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 of 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".


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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"


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5. Practical Issues

Practical Issues

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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



Investigate precise nature of the characteristic requiring accommodation

Identify precisely what accommodation may be required

Consider all alternatives

Ask “why not?”

Practical Issues



Be able to demonstrate alternatives that were considered or 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



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



Practical Scenarios



6. Questions?

Questions

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REGINA1500 Hill Centre 11874 Scarth Street

Regina SK S4P 4E9Phone: 306.347.8000

CALGARY1600 Centennial Place

520 - 3 Avenue SWCalgary AB T2P 0R3

Phone: 403.693.4300

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SASKATOON1500 Saskatoon Square

410 - 22 Street EastSaskatoon SK S7K 5T6Phone: 306.975.7100

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EDMONTONSuite 2200

10235 - 101 StreetEdmonton AB T5J 3G1Phone: 780.969.3500

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VANCOUVERSuite 1800

355 Burrard StreetVancouver BC V6C 2G8Phone: 604.882.7737

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