Advanced Disability Management & Accommodation Workshop

October 8, 2013

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Presenters

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Kevin MacNeill Partner Heenan Blaikie

Samantha Seabrook

Associate Heenan Blaikie

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Opening remarks

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• The complexity of disability management and the duty to accommodate has two principal sources, one legal, one factual

• Complex web of laws Human Rights Workers’ Compensation Occupational Health and Safety Employment Standards Canada Labour Code Common Law Collective Agreements Disability Insurance Privacy Law Case law/statutory amendments

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Opening remarks

• Factual complexity

Different nature of different disabilities

Different workplaces

Different job tasks or functions

Employees may have multiple disabilities

Employee’s personal characteristics

The accommodation needs of one employee may conflict with those of another

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Today’s objectives

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To help you deal with the complexity of current disability management and accommodation issues through:

• A refresher of the key legal principles that have to be kept in mind when approaching these issues

• Collectively thinking through a variety of scenarios in an interactive workshop format

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Overview of the Key Principles

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• WSIB Re-Employment Obligations

• Human Rights

• Focus on Termination

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WSIB Re-Employment Obligations

• Must respect ss. 40 & 41 of WSIA

Link to ss. 40 & 41 of the WSIA

• Must respect Work Reintegration policies of the WSIB

Link to Work Reintegration Policies

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WSIB Re-Employment Obligations

• Main themes of WSIB obligations are:

Timely contact post-injury, ongoing communication

Determining medical capacity

Regular or modified duties to restore earnings

Involve the WSIB if problems

Duration of obligations

Penalties for non-cooperation

Experience rating (Schedule 1)

Ongoing benefits costs (Schedule 2)

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Human Rights

• Ontario Human Rights Code for provincially regulated employers

• Canadian Human Rights Act for federally regulated employers

• Both statutes broadly prohibit “discrimination” in “employment” because of a “prohibited ground of discrimination” such as “disability”

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Human Rights – “Discrimination”

• Discrimination has been defined in many ways but broadly speaking means adverse differential treatment on the basis of a prohibited ground

• It can arise in hiring, firing and the life of the employment relationship

• Intention is irrelevant

• May be justified on basis of BFOR

• No duty to accommodate without it

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Human Rights – “Disability”

Canadian Human Rights Act, section 25

“Disability” means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug

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Human Rights – “Disability” (cont’d)

Ontario Human Rights Code, section 10(1), “disability” means

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, (b) a condition of mental impairment or a developmental disability, (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;

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Human Rights – “Disability” (cont’d)

Notion of disability includes the fact that a person used to have a disability or is believed to have a disability, even if they are not in fact currently disabled

Human Rights Code s. 10(3)

Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City) [2000] 1 S.C.R. 665

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Human Rights – “Disability” (cont’d)

In “actual disability” cases, the employee usually is seeking time off (paid or not), accommodated work or being excused for misconduct/poor performance.

In “perceived disability” cases it is often the employer who is refusing to hire, promote or return the employee to work.

In both cases, the issue of proof is key…

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Human Rights – “Disability” (cont’d)

Four things to keep in mind about proof of disability

1. To qualify for human rights protection, the employee must put the employer on notice of the disability.

This can be actual (i.e. medical note) or constructive (i.e. employee’s conduct).

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Human Rights – “Disability” (cont’d)

2. Once on notice, the employer must reasonably and fairly investigate the employee’s condition to determine (a) functional/cognitive capacities/limitations (b) prognosis (c) other issues such as safety risk to co-workers.

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Human Rights – “Disability” (cont’d)

3. If the employer finds the proof vague or deficient it must tell the employee and seek clarification or better proof.

4. The employee must be cooperative and ultimately has the burden of proof.

As the next few slides show, proof of disability must rise to a certain level both in terms of what type of condition is involved and in terms of the disabling effect of the condition.

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Human Rights – “Disability” (cont’d)

Physical conditions not being disabilities:

• Cold or upper respiratory infection : Moluton v. Leisureworld Caregiving Centre, 2009 HRTO 1575;

• Flu: Ouimette v. Lily Cups Ltd. (1990), 12 C.H.R.R. D/19;

• A temporary illness (deep vein thrombosis) from which the complainant has recovered: Elkas v. Blush Stop Inc. (1994), 25 C.H.R.R. D/158;

• Non work-related twisted ankle resulting in 3 days’ limited mobility : Kalam v. Brick Warehouse, 2011 HRTO 1037

• Obesity not caused by bodily injury, birth defect or illness: Ontario (Human Rights Commission) v. VogueShoes (1991), 14 C.H.R.R. D/425

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Human Rights – “Disability” (cont’d)

Physical conditions not being disabilities:

• An employee who reports pain in a functional

abilities evaluation but who has the functional

ability to do the work does not prove a physical

disability.

Dominion Castings Ltd. v. U.S.W.A. Local 9392 (1998), 73

L.A.C. (4th) 347 (Ont. Arb. Bd.).

(N.B. Disabling pain might be another story)

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Human Rights – “Disability” (cont’d)

Mental conditions not being disabilities:

Grievor claimed he could not drive a “Smart Car” on

the job due to anxiety. Not disability because fear was

normal anxiety that was neither permanent nor

untreatable.

Canadian Union of Public Employees, Local 831 v. Brampton

(City) (2008), 174 L.A.C. (4th) 140

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Human Rights – “Disability” (cont’d)

Mental conditions not being disabilities:

• A bare assertion of “stress”, “anxiety”, “depression” and other symptoms is not sufficient to establish a mental disability

• There “needs to be a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically-significant symptoms, from a health professional in a report or other source of evidence that has specificity and substance”

• The time period of the disability must be specified

• Diagnosis based on DSM not always required

Crowley v. Liquor Control Board of Ontario, 2011 HRTO 1429

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Human Rights – “Disability” (cont’d)

Mental conditions not being disabilities:

• Doctors’ requests, recommendations and suggestions

do not amount to proof of a disability-related needs or

restrictions.

Crowley v. Liquor Control Board of Ontario, 2011 HRTO 1429

Baber v. York Region District School Board, 2011 HRTO 213

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Human Rights – “Disability” (cont’d)

Further issues relating to proof of disability:

• Objective & contemporary versus subjective & after the fact observations

• Medical advocacy

• Opinions based on erroneous assumptions

• Insufficient expertise

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Human Rights – “Disability” (cont’d)

Practical considerations:

• Context is key to deciding how often and how deeply to probe

• The less reason you have to doubt what the employee and his/her doctor is telling you, the less reason to have to ask for more detail and vice versa

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Human Rights – “Disability” (cont’d)

Some final thoughts:

• In WSIB context, health examination requests (by employer s. 36, by WSIB s. 35) when worker claims or receives WSIA benefits

• Surveillance

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Human Rights – BFOR & Duty to Accommodate

Bona Fide Occupational Requirement (BFOR) is a defence to a discrimination claim.

BFOR requires:

1. Valid purpose like safety or efficiency

2. Good faith

3. Accommodation to point of undue hardship

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Human Rights - What is the Duty to Accommodate?

At its most basic, the duty to accommodate means that employers are required to adapt the workplace so as to enable employees with a disability to participate in productive employment

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Human Rights - What is the Duty to Accommodate?

• Accommodation is a multi-party process

• The employer, the employee and the union must cooperate and act reasonably in trying to fashion an appropriate accommodation

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Human Rights - The Employer’s Accommodation Responsibilities

• Take lead in searching for an appropriate accommodation

• Fully canvass and investigate forms of possible accommodation

• Grant accommodation requests in timely manner

• Offer an accommodation which is reasonable in all of the circumstances if it can do so without undue hardship

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Human Rights - The Employee’s Responsibilities in the Search for Accommodation

• Advise employer of need for accommodation (exception: employer may have duty to investigate where employee shows signs of mental illness)

• Answer questions and provide information regarding relevant restrictions or limitations

• Participate in discussions regarding possible accommodation solutions

• Accept offer of reasonable accommodation

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Human Rights - The Union’s Accommodation Responsibilities

• Cooperate with employer to facilitate accommodation

• Agree to make exceptions to the collective agreement as part of accommodation process

• However, if accommodation measure will interfere with the rights of other employees in a substantial way, then union may refuse to consent

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Human Rights - Undue Hardship

• The duty to accommodate extends to the point of “undue hardship”

• Undue hardship is assessed on a case-by-case basis considering a variety of factors

• There is no bright-line rule

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Undue Hardship – The Factors

• Case law identifies a non-exhaustive list of factors to be considered:

Financial cost

Disruption of a collective agreement

Morale of other employees

Interchangeability of work force and facilities

Safety risks

Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489

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Undue Hardship – The Factors (cont’d)

• However, the Ontario Human Rights Code identifies only three factors to be assessed:

Cost

Outside sources of funding

Health and safety requirements

• Canadian Human Rights Act also identifies only health, safety and cost

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Undue Hardship – The Factors (cont’d)

• How do we reconcile the restrictive (i.e., statutory) versus the expansive approach (i.e., case law)?

• The factors to be considered are “not entrenched, except to the extent that they are expressly included or excluded by statute”

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at para. 63

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Focus on Termination

Different considerations depending on:

• Provincially regulated v. federally regulated

• Schedule 1 v. Schedule 2

• Union v. non-union

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Focus on Termination (cont’d)

However, the general rule is to the effect that a disabled employee may be terminated if:

(a)Excessive absence/incapacity to work

(b)Poor medical prognosis as to regular attendance/work

(c)Duty to accommodate has been met

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Focus on Termination (cont’d)

The general rule may be modified by statute or contract. Employers can’t terminate for absences specifically protected under statute or contract like:

Vacation days

Pregnancy, Parental, Family Medical, Organ Donor, Personal Emergency, Declared Emergency & Reservist leaves (ss. 45-50.2 ESA)

Maternity, Parental, Compassionate, Critical Illness, Death or Disappearance, Bereavement (ss. 204-210 CLC)

Sick leave (s. 239 CLC)

Workplace injury (s. 239.1 CLC)

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Focus on Termination (cont’d)

Consideration must also be given to such things as:

WSIA re-employment obligations

Possible impact on experience rating

Non-disability human rights claims

Post-discharge evidence of union employees

Bad faith, punitive, aggravated damages claims

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Focus on Termination (cont’d)

Even if an employer can legally terminate for “frustration” or “innocent absenteeism”, it will still have to pay the employee applicable termination and severance entitlements under the ESA or CLC.

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Case Studies

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