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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
1. Introduction
Introduction
2
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
Comparable provision found in all jurisdictions
Prohibits discrimination in employment
Section 16 Human Rights Code
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
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
5
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
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?
11
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
2. Bona fide Occupational Requirements and Undue
Hardship
BFORs and Undue Hardship
12
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
Regular employees
Probationary employees
Temporary employees
Job applicants
Who is entitled to Accommodation?
18
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
19
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
3. Obligations of Employers, Unions and Employees
Obligations
20
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
21
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
22
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
onus on the employer
Obligations of Employers
23
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
24
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
25
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
26
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
27
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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 otherwise existed
“Duty to Inquire”
Obligations of Employees
28
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
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
29
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
4. Accommodating Mental Disabilities
Accommodating Mental Disabilities
30
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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 of it?
Search for accommodation options Undue hardship?
Accommodating Mental Disability
31
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
MacKenzie v Jace Holdings (2012 BCHRT)
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
MacKenzie v Jace Holdings (2012 BCHRT)
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
MacKenzie v Jace Holdings (2012 BCHRT)
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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)
36
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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 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".
Telecommunications Workers Union v Telus Communications Inc. (2014 ABCA)
37
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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)
38
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
5. Practical Issues
Practical Issues
39
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS 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
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
Practical Scenarios
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
6. Questions?
Questions
45
www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver
LAWYERS Click to edit Master title style
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
rd
SASKATOON1500 Saskatoon Square
410 - 22 Street EastSaskatoon SK S7K 5T6Phone: 306.975.7100
nd
EDMONTONSuite 2200
10235 - 101 StreetEdmonton AB T5J 3G1Phone: 780.969.3500
st
VANCOUVERSuite 1800
355 Burrard StreetVancouver BC V6C 2G8Phone: 604.882.7737
Western Canada’s Law Firm