The Duty to Accommodate: Making Sense of the Law on Managing Disabilities in the Workplace

Transcription

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

2 Agenda 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 1

3 Introduction 1. Introduction 2

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

5 Section 16 Human Rights Code Comparable provision found in all jurisdictions Prohibits discrimination in employment

6 The Duty to Accommodate 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 5

7 The Duty to Accommodate Protected Grounds of Discrimination 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 Disability need not be a work-related illness or injury to be protected under human rights law and trigger the duty to accommodate

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

9 Key Principles 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

10 Requirements of the Duty 1. That the employer consider the needs of the employee. 2. That the employer make a reasonable attempt to modify the rule or practice

11 When does Duty arise? 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 10

12 When does Duty arise? Employer must accommodate, unless employer can establish that discriminatory requirement was a bona-fide occupational requirement and to accommodate would cause undue hardship. 11

13 BFORs Click to and edit Undue Master Hardship title style 2. Bona fide Occupational Requirements and Undue Hardship 12

14 Bona-fide Occupational Requirement 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 13

15 Undue Hardship 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

16 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

17 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

18 Some Factors to Consider 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

19 Who Click is to entitled edit Master to Accommodation? title style Regular employees Probationary employees Temporary employees Job applicants 18

20 Duty to Accommodate Myths 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 19

21 Obligations 3. Obligations of Employers, Unions and Employees 20

22 Specific Obligations 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 21

23 Specific Obligations 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 22

24 Obligations of Employers What constitutes reasonable accommodation is mainly defined by case law also by statute s 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 requires employer, where reasonably practicable, to modify duties or reassign if employee becomes disabled and cannot perform job duties onus on the employer 23

25 Obligations of Employers 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 24

26 Obligations of the Union Union can be liable if: (1) party to the discrimination (2) unreasonably blocks the accommodation 25

27 Obligations of the Union 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 26

28 Obligations of Employees 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 27

29 Obligations of Employees 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 28

30 Duty to Inquire 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 29

31 Accommodating Click to edit Master Mental title Disabilities style 4. Accommodating Mental Disabilities 30

32 Accommodating Mental Disability 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? 31

33 Facts: MacKenzie v Jace Holdings (2012 BCHRT) 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 32

34 Test for prima facie discrimination Employee must show: 1. Disability exists MacKenzie v Jace Holdings (2012 BCHRT) 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

35 MacKenzie v Jace Holdings (2012 BCHRT) 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

36 MacKenzie v Jace Holdings (2012 BCHRT) 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

37 Facts: Telecommunications Click to edit Master title Workers style Union v Telus Communications Inc. (2014 ABCA) 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 36

38 Telecommunications Workers Union v Telus Communications Inc. (2014 ABCA) 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". 37

39 Telecommunications Workers Union v Telus Communications Inc. (2014 ABCA) 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" 38

40 Practical Click to edit Issues Master title style 5. Practical Issues 39

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

42 Practical Issues Investigate precise nature of the characteristic requiring accommodation Identify precisely what accommodation may be required Consider all alternatives Ask why not?

43 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

44 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

45 Practical Scenarios

46 Questions 6. Questions? 45

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