SEMINARS 2011 Accommodation in the Workplace: Getting it Right Presented by David Law 1
Accommodation Every person has right to equal treatment with respect to employment without discrimination on the basis of a prohibited ground under Human Rights Legislation i.e. age, family status, disability, religion To ensure equal treatment, employer has obligation to accommodate employees that encounter barriers to employment because of a prohibited ground up to the point of undue hardship Accommodation enables a person with functional limitations to productively perform and participate in the workplace 2
When Does Duty to Accommodate Arise? The duty to accommodate arises when an employer seeks to apply a standard that is prejudicial to an employee on the basis of specific characteristics that are protected by human rights legislation McGill University (SCC; 2007) Individual cannot be negatively affected by an employment decision prior to that consideration 3
When Does Duty to Accommodate Arise? cont d Employee has an obligation to inform the employer of the need for accommodation Duty to inform requires employee to provide sufficient information to substantiate not only that employee has limitations and restrictions but that the limitations and restrictions actually impact the employee s ability to perform work functions 4
When Does Duty to Accommodate Arise? Simpson-Bowlyn v. Commissionaires (Great Lakes), [2009] HRTO 1369 (CanLII) examined extent of the duty to inform: in order to trigger the duty to accommodate, it is sufficient that an employer be informed of the employee s disability related needs and effects of the condition and how those needs and effects interacts with the workplace duties and environment an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation The test is whether the employer knew or ought reasonably to have known that the employee required accommodation 5
When Does the Duty to Accommodate Arise? Carter v. Neurologic Rehabilitation Institute of Ontario, [2011] HRTO 170 Employer had concerns about employee s job performance Employer discussed the performance issues with the employee Performance Improvement Plan (PIP) was put in place but performance continued to be an issue Issues/concerns communicated to the employee Employee produced a doctor s note that indicated that he should be off work for medical reasons Employee indicated to employer that he was going to have a procedure done that he was glad it wasn t cancerous but that he had to have it removed 6
When Does the Duty to Accommodate Arise? cont d Carter v. Neurologic Rehabilitation Institute of Ontario, [2011] HRTO 170 Employer had concerns about employee s job performance Employer discussed the performance issues with the employee Performance Improvement Plan (PIP) was put in place but performance continued to be an issue Issues/concerns communicated to the employee Employee produced a doctor s note that indicated that he should be off work for medical reasons Employee indicated to employer that he was going to have a procedure done that he was glad it wasn t cancerous but that he had to have it removed 7
When Does the Duty to Accommodate Arise? Baber v. York Region District School Board, [2011] O.H.R.T.D. No. 206 Baber was a secondary school teacher working for York Region District School Board All teachers subject to a teacher performance appraisal (TPA) Baber claimed that she suffered from acute anxiety attack and could not participate in the TPA process Employer advised that subject to receipt of medical information, she was expected to participate in the TPA process To give rise to a duty to accommodate, Baber was required to show that the requirement that she undergo a TPA had an adverse effect on her because of her disabilities 8
When Does the Duty to Accommodate Arise? cont d None of the medical notes submitted by employee addressed her ability or inability to participate in the TPA process Tribunal held: Must communicate more than the fact that she has a disability Obligation to inform employer of disability related needs and how those needs interact with her workplace duties Employer did not breach duty to accommodate 9
Employer s Duty to Accommodate Procedural obligations Take the necessary steps to determine what modifications might be required in order for employee to participate fully in the workplace Substantive obligations Make the modifications necessary in order to allow the employee to participate fully in the workplace, up to the point of undue hardship For example, modifying duties or hours or the workplace itself 10
Employer s Duty to Accommodate In Baber v. York Region District School Board, Tribunal held Employer fulfilled procedural and substantive obligations: Employer took reasonable steps to ascertain whether the employee had a disability which limited ability to undergo the TPA Employer specifically asked for medical documentation confirming her limitations/restrictions and the fact employee incapable of participating in the TPA process Employer did not have duty to accommodate by exempting employee from the TPA because no medical evidence to support request 11
Standard for Accommodation Reasonable not Perfect Employee cannot expect a perfect solution. If a proposal for accommodation that is reasonable in all the circumstances is refused by the employee, the employer s duty to accommodate is discharged. Central Okanagan School District v. Renaud (1992), S.C.C. 12
Standard for Accommodation Ontario Public Service Employees Union v. Ontario (Ministry of Revenue) (Alviani Grievance), [2011] O.G.S.B.A. No. 9 Employee had a rotator cuff injury which impacted her ability to do her job Employee was off but cleared to return to work with restrictions An ergonomic assessment was recommended and employee refused to return to work until assessment completed Approximately 16 weeks passed before ergonomic assessment was completed and employee returned to work Employee alleged a failure to accommodate in a timely fashion 13
Standard for Accommodation, cont d Based on ergonomic assessment, supplies needed for employee s workspace Request for supplies not marked urgent If request would have been treated as urgent, the items likely would have been delivered 3 weeks earlier Employer cooperated fully and did not show indifference to employee s need for accommodation only a small portion of the total delay is attributable to the employer. The evidence indicates that if the employer had done everything perfectly, the grievor would likely have returned to work 3 weeks earlier than she did. However, the duty to accommodate does not obligate the employer to be perfect. It is required only to be reasonable. Employer not in breach of duty to accommodate in a timely fashion 14
Duty to Accommodate A Shared Responsibility Employers and employees both have roles to play in the accommodation process What is employee s role? Duty to cooperate Duty to provide adequate medical information Duty to accept reasonable accommodation 15
Duty to Accommodate A Shared Responsibility What is employer s role? Determine how to accommodate Bear the primary responsibility and initiate the process Treat the employee with respect Implement an accommodation policy and practice Train managers and staff on the policy and practice Medical assessment where required Plan and manage return-to-work Review and revise accommodation policy and practice on a regular basis Instruct and evaluate managers/supervisors with respect to accommodation Consider an accommodation budget 16
Employee s Obligations Employee s failure to co-operate will not automatically relieve the employer of its duty to accommodate Canadian Union of Public Employees (Air Canada Component) v. Air Canada, [2010] C.L.A.D. No. 237 the employee s lack of co-operation in accommodation process did not relieve employer of duty to accommodate nor did it justify the termination of the employee s employment However, due to employee s failure to co-operate, the liability of the employer was reduced Employee was reinstated to her position but she was only awarded one-half of her wages and benefits lost 17
Employee s Obligations Provision of Medical Information by Employee Need objective evidence of restriction based on protected ground Personal health information is essential for a mutually satisfactory and successful accommodation process: To ensure a safe return to work To confirm the extent of an employee s limitations, restrictions and capabilities, and make workplace changes accordingly To completely and adequately address the employee s needs 18
Employee s Obligations, cont d An employee s overzealous protection of confidentiality may unduly frustrate the accommodation attempt The employer s legitimate need for medical information must be balanced with employee privacy Employer request must be reasonable Employers are limited to what is needed to satisfy the purpose of accommodation Prognosis v. diagnosis 19
Employee s Obligations An employee s failure to provide adequate medical information may relieve employer from its duty to accommodate British Columbia Government and Service Employees Union v. British Columbia, [2008] B.C.C.A.A.A. No. 69 (QL) Employee refused to consent to have an independent specialist review of her available medical information because she felt that she had provided "enough medical information" Employee also refused to provide updated medical information setting out her current physical restrictions, required workplace modifications, and capabilities if her condition had changed 20
Employee s Obligations, cont d Arbitrator held employee s lack of co-operation impaired the employer s efforts to accommodate: The information [requested] would have helped the Committee in its job search for alternative positions for the grievor, and the medical information would have "allowed the [e]mployer to consider modifications to an existing position." Employer did everything it could do: "the cumulative efforts of the [e]mployer's representatives satisfied its [accommodation] obligations." "lack of cooperation in response to reasonable requests made of her during the placement process relieved the [e]mployer of any duty to pursue additional measures." 21
Employer s Obligations Employer has the duty to assess and determine the employee s ability to work L.K. v. Boehringer Ingelheim (Canada) Ltd., 2010 B.C.J. No. 583 (QL) Employee was off work due to a disability but in November 2002, indicated to her employer a desire to return to work July 2004 employee provided medical information confirming that she might be able to return to work Employer did not respond or act on this information 22
Employer s Obligations, cont d February 2005 employer sent a letter to employee confirming its readiness to consider reasonable accommodation, and advised her, for the first time, that medical information provided in July 2004 was inadequate Employer asked employee to complete a Disability Accommodation Questionnaire Employee not willing to cooperate given she had previously provided medical information and filed a human rights complaint 23
Employer s Obligations, cont d Tribunal held (decision reviewed and upheld by the court): Employer s knowledge in November 2002 that employee wished to return to work triggered duty to accommodate Employer cannot rely on its own failure to seek medical information to justify its failure to take steps to find a reasonable accommodation. Even if employee needs to provide medical information, the employer should still take other steps to assess the need for accommodation Not the employee s responsibility to provide objective evidence of ability to work Employer could have but did not investigate how employee could perform her work duties by alternative means (i.e. through the use of adaptive equipment and training) Employer did not meet duty to accommodate 24
Employer s Obligations, cont d An employer bears the responsibility in the accommodation process and cannot turn a blind eye to suspicious behaviour and/or other manifestations of an actual disability and then be able to rely upon the absence of direct knowledge to argue that it is under no obligation to accommodate City of Montreal v. Commission des droits de la personne et des droits de las jeunesse du Quebec, [2000] S.C.J. No. 24 (QL). 25
Employer s Obligations, cont d Communications, Energy and Paperworks Union of Canada, Local 975 v. Direct Energy, [2009] O.L.A.A. No. 216 (QL) February 2007, employee advised employer he was a drug user At that time, employer referred employee to EAP and he committed to participate in a rehabilitation program but he failed to follow through with the program November 20, 2007, employee informed supervisor that on November 16, 2007 he used the company car to purchase cocaine during work hours November 30, 2007, employee s employment terminated because he purchased illegal drugs during working hours Employee alleged that he was suffering from a drug addiction which gave rise to a duty to accommodate and employer breached duty by terminating his employment 26
Employer s Obligations, cont d At time of termination, no evidence that employee had consumed drugs during working hours Employer claimed it did not know nor did it have a reason to believe the employee had a drug addiction Arbitrator held The employer, who must be presumed to know that cocaine is an addictive drug and that while all users do not become addicts a significant number do, should reasonably have suspected that [employee] may have been suffering from a cocaine addiction Employer had a duty to accommodate and failed to do satisfy this duty 27
What is Accommodation? Employer must take reasonable measures to provide the most appropriate accommodation available under the circumstances. This means making changes to: Duties and tasks Physical demands Methods of achieving work results Tool, equipment, clothing The physical workplace/workstation Hours of work Location of work The distribution of duties among co-workers The number and use of breaks during the working day The amount of work a person performs The quality of work a person performs 28
What is Accommodation? cont d No set formula for accommodation To the point of undue hardship 29
What is Accommodation? cont d the employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee s workplace or duties to enable the employee to do his or her work - Hydro Quebec [2008] S.C.J. No. 44 (QL) Example: Original Job Reviewing job performance outcomes and results Identifying methods equipment, environment, tools, physical requirements, etc. Altering methods to meet the candidate s characteristics Measuring job performance and the success of the accommodation 30
Is the Employer Required to Modify a Different Position? Answer: Yes The duty to accommodate is more extensive than simply comparing the employee s qualifications to the requirements of existing positions Need to focus on the duties still able to perform and analyze their ability to perform other functions If a function is necessary, then look at altering methods to enable the candidate to fulfill job outcomes Editing jobs to fit the candidate Is the method truly necessary? 31
Is the Employer Required to Reassign to Another Position? Answer: If necessary, yes but only after efforts to accommodate in the original position have been tried without success The job roster The accommodation candidate roster Vacancies, postings and existing work 32
Is an Employer Obligated to Bundle or Cobble Together Productive Duties? Answer: Yes depending on the individual facts of the case Is not a general employer obligation but may be required if necessary and no other alternative Rebundling existing productive tasks may be required in certain circumstances The scope of the duty to accommodate can extend to this option without constituting undue hardship 33
Is the Employer Obligated to Displace Another Employee From Their Position? Answer: Unlikely but possibility not ruled out The CHRA appears to prohibit it in some instances In unionized context, is rare due to potential interference with and impact on collective agreement rights and the possibility and degree of hardship to other employees Considered as last resort where limited accommodation possibilities and no other reasonable alternatives exist An employee is not automatically entitled to this alternative by virtue of a disability and the duty to accommodate, particularly if other reasonable and less intrusive options exist 34
Is the Employer Required to Assign Unproductive, Unnecessary Work? Answer: No There is a clear expectation that employees must be able to perform useful and productive work Where an employer can demonstrate that the employee will only be able to perform work of no real value, a refusal to accommodate will not be discriminatory Not required to create a new job that does not add value to the employer s business 35
Is an Employee Entitled to the Same Compensation for Accommodated Work? Answer: Not unless their contract requires it Subject to Worker s Compensation obligations, there is no obligation upon an employer to pay a disabled employee more than the standard rate of pay associated with an accommodated job Employers can pay an employee the wages associated with the work being performed, as opposed to a rate linked to the employee s prior job 36
How Long Do We Accommodate? There is no time limit on how long accommodations must be offered to a person: responsibilities are ongoing An employer is required to accommodate until the point of undue hardship Accommodations must be offered until evidence demonstrates that the person is not likely to be able to fulfill the bona fide occupational requirements We work at it until convinced that it is impossible for the person to productively perform 37
How Long Do We Accommodate? No breach of duty to accommodation where providing accommodation on a permanent basis, rather than for a temporary period, results in hardship to employer United Food and Commercial Workers, Local 401 v. Canada Safeway Ltd., [2010] C.L.A.D. No. 327 (QL) Employee working as bakery manager on a part-time basis for two years to accommodate a disability Most of the physical demands of the job were eliminated The employer intended that this would be temporary and that condition would gradually improve 38
How Long Do We Accommodate? cont d Functional capacity evaluation confirmed that employee s work restrictions would likely be permanent Employer decided to transfer employee to position of journeyman baker at another location on a part-time basis Employee alleged breach of duty to accommodate Arbitrator held: not reasonable to expect employer to convert bakery manager s position into part-time position and remove physical demands of job on a permanent basis; undue hardship No evidence that employee would be able to do physical demands of the bakery manager job, even on a part-time basis 39
What Is Undue Hardship? Accommodation is not required if it imposes undue hardship High threshold More than 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 Renaud (Supreme Court of Canada) Determination is case specific - No definition 40
Nature of Evidence Required to Prove Undue Hardship Must be objective, real, direct and in the case of cost, quantifiable Person responsible for accommodation must provide facts, figures and scientific data or opinion to support a claim that a proposed accommodation causes undue hardship A mere statement, without supporting evidence, will not be sufficient 41
Elements of the Undue Hardship Defence: Cost Costs will amount to undue hardship if they are: Quantifiable; Shown to be related to the accommodation; and So substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability 42
Elements of the Undue Hardship Defence: Health and Safety Employers have a legal responsibility for workplace health and safety Conflict between health and safety and duty to accommodate: Accommodation requirement conflicts with prescribed safety precautions (ie. Inability to use certain safety equipment) Presence of certain employees in the workplace poses potential risks to other employees Risk versus accommodation 43
Elements of the Undue Hardship Defence: Health and Safety Objectively assess the risk Nature of the risk (what could happen) Severity of the risk Probability of the risk (likelihood) Scope of the risk (who will be affected) Person with a disability may assume some risk Where risk is so significant as to outweigh the benefits of equality it will be considered to create undue hardship 44
Extent of Undue Hardship There is no method, technique, tool, device, clothing or practice that is more important than the person doing the work The employer s policy and implementation must reflect that rule, or it will probably fail to accommodate and fail to prove the employer made a satisfactory effort 45
Extent of Undue Hardship The Policy and its Implementation Perceived fairness Quality of management effort Quality of employee effort Patience and Good Faith These may be the real measures of an employer s effort and on which an undue hardship ruling can be made 46
Extent of Undue Hardship Assessed on a case-by-case basis and is dependent upon the circumstances in each particular individual matter Regardless of the factors considered, employers bear a heavy onus in establishing that they have accommodated to the point undue hardship 47
Final Comments Employers and employees share responsibility for accommodation Implement an accommodation policy but keep in mind that each situation is unique not one size fits all Keep open and regular communication to employee Goal is to offer a reasonable not perfect solution Undue hardship is high threshold expect some degree of real hardship Mistakes can be costly 48
DAVID K. LAW Gowling Lafleur Henderson LLP Barristers & Solicitors 160 Elgin St. Suite 2600 Ottawa, ON K1P 1C3 Direct Tel: 613.783.8829 Direct Fax: 613.788.3417 Email: david.law@gowlings.com Montréal Ottawa Toronto 49 Hamilton Waterloo Region Calgary Vancouver Moscow London