Human Rights in the SAFE Workplace

Simon GillinghamWorkplace ConsultantCity of Winnipeg# 986-4494

Worker Rights

•Every worker has the following rights:

•♦ Right to Know

•♦ Right to Participate •♦ Right to Refuse

COMPETING RIGHTS

•Human Rights Legislation

•Paramount Status

•To be interpreted broadly

•Can’t contract out of Human Rights

Edmonton police set to unveil official hijab that Muslim officers can wear on duty SOURCE National Post

Legal Basis

•The Human Rights Code – 13, 14, 9 (1)(d), 9(2), 12

•Court and Tribunal Decisions – “Meiorin”

•Employment•Services

Who is responsible for work accommodations?

**Employer**Employee

Union

Protected Characteristics?• ancestry, including colour and perceived race• nationality or national origin• ethnic background or origin • religion or creed, religious belief, religious association or activity• age• sex, including pregnancy, the possibility of or circumstances related to

pregnancy• gender-determined characteristics or circumstances other than those

included under ‘sex’• sexual orientation• marital or family status• source of income• political belief, association or activity• physical, or mental disability including reliance on a dog guide or

other animal assistant, a wheelchair or any other remedial appliance or device

• New as of June 2012 : Gender Identity and Social Status

Pregnant or nursing workers

•must be informed of any risk that conditions in the workplace may pose to them or their unborn or nursing child.

•Where it is reasonably practicable an employer must take steps to minimize the exposure, or

if alternate work is available that involves no

risk or less risk, assign the worker temporarily to that alternative work.

General Principles

•Respect for dignity •Individualization •Inclusion•Trial & Error•Dignity of Risk•ALL ASPECTS !!

In Practice

Proactive

Reactive

!

PROACTIVE

•WELLNESS PROGRAMS•FITNESS PASSES FOR EMPLOYEES ON

LTD•INCLUDE LTD EMPLOYEES IN

TRAINING/ WORK EVENTS•JOB STRENGTHING COACH•ENCOURAGE WORK HARDENING

PROGRAM BEFORE RETURN TO WORK•GRACE PERIOD FOR PERFORMANCE

“Employment” broadly defined

“any aspect of an employment or occupation"

Changes requiredat work?

•physical workspace, computer software

• job expectations, requirements, quotas

•scope of work , bundling•hours of work, varied, PT

Challenges

•Defining Undue hardship is elusive •Assessments must be individualized•Medical information & privacy issues•Employee can refuse to provide medical•Cannot require employee to see physician

•Verifiable evidence vs. impressionistic •Inconvenience not Undue Hardship

Mental Health ISSUES

•Depression most frequent disability [2020]

•1 in 4 Manitobans will have MH illness•Anxiety•Stress – claims Supervisor is cause•Employee not cognizant •Stigma•Culpable versus non-culpable

Drug & Alcohol Testing

•Supreme Court decision 2013•Only test for cause•Post incident•Record as near miss and/or incident

•Pre-employment testing?•Treat addiction as disability

DUTY TO INQUIRE

•Onus on Employer to inquire•Duty to act•Addictions •Mitigating factors in discipline hearings

•Fact versus assumptions

Dignity of Risk

•Right to make decision •Acceptable personal risk•No undue risk to other employees•No undue risk to public •Workers Comp No-Fault insurance•No guarantee of absolute safety•Verifiable vs. impressionistic •Inherent to the job

In Meiorin vs. British Columbia (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R.) the Supreme Court referred to two inquiries to consider with respect to accommodation:

(a)the procedure adopted by the employer to assess the issue of accommodation; and (b)(b) the substantive content of any accommodation offered

[Liability attached to both!!]

Searching for an accommodated position

Changes required in a WORK environment?•Physical facilities•Reduced hours, part-time, work at home•Alternate formats for communications•Bundling•Exceptions to policies (e.g. attendance)•Uniforms, equipment, tasks etc.•Dignity of Risk.

UNDUE HARDSHIP

Cost of doing business

•More than a mere negligible effort is required to satisfy the duty to accommodate. The use of the term undue infers that some hardship is acceptable. It is only undue hardship that satisfies this test

Central Okanagan School Dist. No 23 v.Renaud (1992, Supreme Court of Canada)

NOT REQUIRED…

•Fundamental changes to position•Employee preference!!•Paying for no work or unnecessary work

•Absolutely everything possible •Complete unfitness for work for the foreseeable future

•Ignoring previous accommodations made

FACTORS

•financial cost • impact on collective agreement •morale • interchangeability •size•Safety•BFOQ

B.F.O.Q.Bona Fide and reasonable discrimination does not extend to allow for the failure to accommodate based on 9(2) characteristics.

Bona Fide Occupation Requirement

•Good Faith and rationally connected?•Impossible to Accommodate•Evidence of investigating alternatives•Consulted with experts•Systemic implications•Universal or inclusive

F.A.Q.•How long does obligation continue?•Pay issues •After the accommodation •Unionized workplaces i.e. cross union•Posted vacancies •Attendance management•Accommodation funding [WCB, EPB,CPP]

PRE-EMPLOYMENT

•Applicant not required to disclose disability

•Physical testing must be related•Individized testing required•If disability disclosed obligation to

accommodate•Review systemic barriers•Section 11 of The Code

Case law

•Firefighter Ont. [Davis]•Safety gear [Steel toe]•Paramedic driver’s license [Cassidy-MS]•Hearing impaired

County of Brant v. OPSEU, 2013 ONSC 1955 (CanLII)

•Judicial Review of Labour Arbitration•Paramedic with injuries requests

accommodation as 3rd Ambulance attendant

•Still had lifting restrictions•Risks inherent to the position•The risks he assumes are potential risks

and not direct threats