DRAFT MODEL POLICY ON ACCOMMODATION. TO: All employers in the legal profession in Nova Scotia

Transcription

1 TO: All employers in the legal profession in Nova Scotia Attached is a copy of a model accommodation policy, still in draft form, prepared by the Disability Awareness Committee of reachability. This policy will be made available to all those who might wish to implement the policy in their offices. Given that we are still in the consulting phase of development of this model policy, we are hoping that you will provide us with your feedback as to the effectiveness of this document in capturing the rights and responsibilities relating to accommodation and whether or not you believe this policy will be useful and/or applicable to your workplace. Accommodation policies available to lawyers in the legal profession vary greatly. In many cases, no policies exist and lawyers negotiate with the managing body at their workplace on a case-by-case basis. Other firms and institutions that employ lawyers may have policies in place and a concrete practical strategy to guide the employer on how to accommodate individuals. Regardless of what your workplace currently has adopted, it may be useful to review the model policy to ensure that all the recommended areas to be included in an accommodation policy are covered. The attached Model Policy was formulated after a thorough review of a variety of policies from various jurisdictions in Canada, including Law Societies, Bar Associations, corporations and governmental agencies. The Equity Officer at Nova Scotia Barristers Society collaborated extensively with reachability, a charitable organization committed to creating an equal playing field for persons with all types of disabilities, and their Disability Awareness Committee. The Committee has developed the attached policy with a view of it serving as the recommended model for Nova Scotia law firms and other employers of lawyers in Nova Scotia. As important as a thoughtful policy with a positive tone may be, the best drafted policy cannot succeed without the support of managing partners and senior lawyers. Attitudes, both positive and negative, are transmitted through these individuals. If the workplace leadership projects an attitude that the policy is important, and that the workplace actively encourages respectful accommodation strategies, that attitude will become the pervasive attitude of the workplace community. The primary reason for the support of an accommodation policy is the recruitment and retention of valued lawyers who adequately represent the population they serve. Adopting the provisions of the attached Model Policy does not need to be expensive or onerous for the employer. Alternatively, it could simply be used as a medium to shift workplace cultures to become more inclusive. We recognize it may be difficult for each firm in Nova Scotia to adopt all measures in this model policy; therefore, this is meant to be used as a guide, and all measures may not be conducive in every situation. Please provide your feedback on this draft model policy to: Emma Halpern, NSBS Equity Officer, equity@nsbs.org. An online copy can be found at: Model Policy on Accommodation, November

2 PURPOSES Our firm recognizes the need to implement an accommodation policy. This will be developed for the purpose of encouraging and supporting individuals entering, and currently in, the legal profession in order to ensure that we are an inclusive workplace and representative of the public we serve. We recognize it is our social responsibility to be representative of our community and acknowledge the importance of diversity in the workplace. Our firm is committed to providing accommodation to persons with disabilities, and this policy sets out values and guidelines with respect to the said accommodations. Our firm recognizes the law is constantly developing in the area of accommodation and we are committed to revisiting this accommodation policy on a periodic basis. Statement of Values Our firm commits to ensuring every employee is treated with respect. Our firm believes in the promotion of full participation of people living with disabilities. Our firm recognizes discrimination is prohibited under the Nova Scotia Human Rights Act on the basis of age; race; colour; religion; creed; sex; sexual orientations; physical or mental disability; an irrational fear of contracting an illness or disease; ethnic, national or aboriginal origin; family status; marital status; source of income; political belief, affiliation or activity; or that individual s association with another individual or class of individuals having characteristics referred to previously. Our firm recognizes our practices are guided by both the Legal Profession Act and the Legal Ethics Handbook. Our firm recognizes treating people equally does not always mean treating them identically. Our firm commits to accommodating differences on a case by case basis to the point of undue hardship. Our firm believes each individual has the right to work and study in an atmosphere that promotes equal opportunities. Application This policy applies to all the services offered by our firm including partners, associates, all employees of our firm, articling clerks, summer students and clients. No person shall suffer any penalty for seeking accommodation. Our firm recognizes that accommodation requires a collaborative effort on the part of the individual seeking accommodation, the employer and all other relevant stakeholders. Accommodation may be either on an individual basis or based on the needs of a group and the firm recognizes during the accommodation process there may be many stakeholders involved when working toward accommodations. The firm further acknowledges the importance of both retroactively and proactively addressing accommodation needs. Model Policy on Accommodation, November

3 Definitions 1) DISABILITY: The Nova Scotia Human Rights Act defines physical or mental disability as meaning actual or perceived: - loss or abnormality of psychological, physiological or anatomical structure or function; - restriction or lack of ability to perform an activity; - physical disability, infirmity, malformation or disfigurement, including, but not limited to, epilepsy, and any degree of paralysis, amputation, lack of physical co-ordination, deafness, hardness of hearing or hearing impediment, blindness or visual impediment, speech impairment or impediment or reliance on a hearing-ear dog, a guide dog, a wheelchair or a remedial appliance or device; - learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language; - condition of being mentally impaired; - mental disorder; or - dependency on drugs or alcohol. 2) DUTY TO ACCOMMODATE: The Supreme Court of Canada in VIA Rail Canada Inc. v. Canadian Transportation Agency stated human rights acts impose a legal duty to accommodate the needs of persons accessing their protection to the point of undue hardship. The scope of the right of persons with disabilities to be free from discrimination will depend on the nature, legitimacy and strength of the competing interests at stake in a given case. The goal of the duty to accommodate is to render those services and facilities to which the public has access equally accessible to people with and without physical limitations. 3) UNDUE HARSHIP: There is no all-encompassing definition of undue hardship, nor is there a precise formula for determining whether a specific accommodation will impose undue hardship. However, the Supreme Court of Canada in Council of Canadians with Disabilities v. VIA Rail Canada Inc. found: Undue hardship implies that there may necessarily be some hardship in accommodating someone s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate. Furthermore, the judgment states: Concrete evidence is required to establish undue hardship. Considerations of health, safety and finances are useful when ascertaining whether an accommodation would impose undue hardship; however, this list is not meant to be exhaustive. 4) DISCRIMINATION: The Nova Scotia Human Rights Act states: a person discriminates where the person makes a distinction, whether intentional or not, based on a characteristic, or perceived characteristic, that has the effect of imposing burdens, obligations or disadvantages on an individual or a class of individuals not imposed upon others or which withholds or limits access to opportunities, benefits and advantages available to other individuals or classes of individuals in society. Model Policy on Accommodation, November

4 Responsibilities of the Employer The employer has a responsibility to publicize the accommodation policy so all individuals concerned are aware of their rights and responsibilities. Once a request for accommodation is received, the employer and employee should engage in conversation to clarify the needs of the individual. Our firm recognizes at times it may be appropriate to initiate conversation with individuals regarding a potential need for accommodation, as often individuals are not aware of the principles surrounding the duty of the employer to accommodate employees needs. When accommodating individuals, our firm recognizes the need to educate ourselves on accommodations and initiate an open dialogue with the individuals seeking accommodation to identify the individuals needs. Once an accommodation has been determined, the dialogue between the firm and the individual should turn to implementation strategies. When the appropriate method for implementation has been established, both the firm and the individual will be provided with the details of the measures that have been agreed upon. This strategy will be confirmed in writing and provided to all parties involved. Our firm recognizes there may be circumstances where professional assistance is required in order to ascertain the needs of the individual seeking accommodation and to assist in the implementation of appropriate accommodations. Our firm recognizes persons with disabilities represent a group with unique needs in relation to the issue of accommodation (i.e., assistive devices) and inclusion (stigma and education). Our firm is obliged to accommodate to the point of undue hardship. Our firm reserves the right to request a note from a medical profession in order to assist in identification of the disabilities; however, our firm recognizes the duty to accommodate may go beyond the recommendations offered by the medical profession. Our firm recognizes accommodation needs may change over time; therefore, the open dialogue does not end once the accommodation is implemented and we are committed to revisiting accommodation measures as need be. Our firm is prepared to meet changing needs and circumstances of the individual being accommodated if necessary. Our firm recognizes accommodation measures often take time to implement; therefore, there may be situations where an interim accommodation is the best immediate response to a request for accommodation until a full accommodation strategy can be implemented. Responsibilities of Individual Seeking Accommodation If possible, the individual should communicate to the appropriate person, any barriers preventing him/her from doing the best they can do, in order to initiate discussion as to his/her needs and concerns with the accommodation. If the individual is unable to articulate his/her needs, it may be appropriate in certain circumstances to offer assistance by engaging an appropriate third party to provide advice. The need to involve a third party should be expressed to the employer in a timely fashion. Model Policy on Accommodation, November

5 A third party may also be advantageous to incorporate in the accommodation process if professional assistance is required in order to ascertain the needs of the individual, and to implement appropriate accommodations. The individual seeking accommodation is responsible for educating himself/herself to determine his/her needs during the accommodation process and to communicate these needs in a timely fashion. The individual is responsible for working with the employer to establish an appropriate accommodation and methods for implementing the said accommodations. When requesting medical documentation, the individual will be encouraged to request that the medical practitioner use directive language to explain the nature of the disability and specific details of the accommodation. If the documentation is unclear, clarification should be sought. There may be instances where it would be reasonable or favourable for the parties involved to seek a second opinion. If the individual s needs or circumstances change after the chosen accommodation is implemented, the individual is responsible for communicating this to the employer. The individual must be prepared, under certain circumstances, to accept an interim accommodation as some accommodations take time to implement. The individual has a responsibility to cooperate throughout the whole accommodation process. Confidentiality All information obtained by the employer during the accommodation will be held in strict confidence and no information will be divulged unless expressly authorized by the individual or where required by law. Model Policy on Accommodation, November