Disability Accommodation in the Workplace

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Transcript of Disability Accommodation in the Workplace

  • Employment and Labour Law

    SEMINARS | 2015

  • Two Steps Forward, One Step Back:

    Disability Accommodation

    In the Workplace

    Presented By: Melanie Polowin

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  • Our Story Begins .

    Talk2Me Inc. is a small translation services company with 30 employees in its Vancouver office. John was hired in 2011 into its 5-person French

    translation group. He was a decent, reasonably cheerful guy (though not

    a star) until the summer of 2014.

    Then he started missing work for migraines on average, almost 1.5 days a week in June, July and August. Even when at work, he was not

    functioning as well he was irritable, less productive, and negative. In early September 2014, John went on STD for 4 weeks.

    Since returning, the migraines persist he is missing fewer days but still a fair amount, and his productivity and downer attitude remain a problem. Johns doctor is still trying to diagnose the problem.

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  • STOP!

    D. Dont play doctor, do play defence

    R. Request up to date medical information/clarification

    O. Options canvas, identify, consider, assess, prioritize, test

    P. Participation this is a co-operative, collaborative TEAM SPORT!

    and

    R. Rinse and repeat

    O. Observe and adjust

    L. Log and document at every step

    Reflex and rigidity are the main enemies of accommodation!

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  • Accommodation and disability management:

    is an active process.not a static event or series of events

    is a marathonnot a sprint

    is a shared responsibility amongst management, co-workers and the individual

    requires individualized assessment

    requires periodic review and reassessment

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  • Be proactive with general planning and preparation

    bona fide reasonable job requirements, rules and policies

    effective accommodation policies/guidelines/protocols

    on-boarding and ongoing training for managers and supervisors

    on-boarding and ongoing employee education

    Acknowledge and accept that there is a positive duty to accommodate

    Never dismiss requests out of hand!

    be sensitive and flexible when dealing with specific problems

    engage in ongoing collaborative dialogue with employee re needs

    assess based on actual merits/circumstances of individuals situation

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  • Recently, John met with Sunny, the Human Resources Manager. He asked for the next several weeks to try modified work arrangements

    suggested by his doctor a flexible reduced workweek and some changes to his physical surroundings (special lighting; relocating to a

    quieter work station).

    Later the same day, Johns supervisor, Marla:

    told Sunny she was fed up with Johns unreliability and reduced productivity

    flatly refused to consider implementing any of Johns requested modifications, saying John is fine, he is simply milking the system

    said her group couldnt function properly if Talk2Me grants Johns requests as it is, they are frustrated because their burden increases every time John is away.

    What Marla really wanted to know was: how soon can Talk2Me terminate John?

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  • STOP!

    Rushing to the finish line is a fatal error!

    D. Dont play doctor, do play defence

    R. Request up to date medical information/clarification

    O. Options canvas, identify, consider, assess, prioritize, test

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  • Recap: jurisdiction which laws apply?

    Which laws apply?

    generally (everywhere except Quebec), the employee/worker relationship is governed by the common law of the province where the

    employee/worker primarily works (in Quebec, the Civil Code applies)

    for provincially regulated employers, the human rights and other relevant legislation of the province where the employee/worker primarily works

    will apply

    for federally regulated employers, the Canadian Human Rights Act and other relevant federal legislation will apply, but the province where the

    employee/worker primarily works will be a factor when dealing with

    accommodation in the context of workers compensation issues

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  • Recap: what does disability mean?

    Inconsistent definitions/scope of disability or handicap across Canada

    Very broad concept that covers injuries, illnesses, diseases, impairments and conditions (permanent or temporary) that are more

    than transient:

    past or present or perceived/presumed (even if not actual)

    regardless of cause/source, even if self-inflicted (drugs, obesity) or unrelated to workplace

    visible or not, physical, mental, emotional and learning

    includes addictions, environmental sensitivities and severe allergies

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  • Recap: disability accommodation triggers

    Obligations can arise under:

    general statutes ( e.g., human rights, health and safety, workers compensation)

    dedicated legislation (e.g. Accessibility for Ontarians with Disabilities Act, 2005)

    Common disability accommodation triggers include:

    self-evident (wheelchair) or self-disclosed disabilities

    observable indicators of workplace problems (performance or attendance issues, visible signs of distress or impairment)

    all medical notes/requests for leave and/or accommodation

    Employers cannot be willfully blind.

    Objective signs can trigger a duty to inquire.

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  • Accommodation: threshold test

    Does the situation meet threshold requirements for accommodation?

    employee/candidate has a disability

    reasonable grounds to believe that he/she suffers or could suffer some adverse treatment or effect as a result of employers requirements or (in)actions

    the disability does or will play any role in the adverse treatment or effect

    employer knows (or ought to know) accommodation is requested or required

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  • Accommodation: what next?

    The onus then switches to the employer to make a sincere and provable

    effort to consider accommodation options and to (as applicable):

    prove any bona fide occupational requirements (BFOR)

    provide reasonable accommodation options if feasible

    make a meaningful effort to implement its preferred option

    demonstrate flexibility re other feasible options if need be

    otherwise: prove that the disability cannot be accommodated without undue hardship

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  • Dual obligations

    Accommodation has a procedural aspect and a substantive aspect and the

    employer must demonstrate compliance with both aspects:

    procedurally obtain necessary medical information and properly investigate any available options

    substantively take reasonable steps to implement necessary modifications, and to try different alternatives, up to the point of undue

    hardship

    If you are provincially regulated, mere failure to follow proper

    accommodation process will= breach, even if undue hardship exists (note

    an emerging federal vs. provincial schism on this point)

    Reflex and rigidity are the main enemies of accommodation!

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  • The key question to be answered is this: ultimately, can this employee,

    with reasonable accommodation (and without causing the employer

    undue hardship), still perform (or resume performing) the essential

    elements of his/her position?

    However, you cannot answer the key question unless/until you know:

    what are the essential elements of the position?

    what are the limitations imposed by the disability (nature, scope, duration, frequency) and are those changing over time?

    what accommodations are medically required (vs. recommended vs. desired) and are those changing over time?

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    Key question

  • Requesting information

    What information can and should Talk2Me reasonably request?

    prognosis (yes) vs. diagnosis (generally, no) nature and effect on job performance and attendance likely duration/recurrence restrictions/limitations/accommodations (scope, necessity, duration) treatment/medications if they may affect job performance and

    attendance

    other information if relevant, reasonable and truly necessary to enable properly informed assessment of options specialist/outside expert independent medicals

    requires balancing privacy vs. relevance and utility of information requires dialogue/collaboration/controlled sharing of information

    Help us understand; help us help you.

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  • Sunny did some arm-twisting, and persuaded Marla to let John try all of the modified workplace arrangements for 8 weeks.

    Sunny gave John a letter to give his doctor, outlining the truly essential tasks/requirements of his job, and asked John to provide additional

    information from his doctor within the next month.

    Marla and her team were still not happy John noticed increasing hostility.

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  • STOP!

    D. Dont play doctor, do play defence

    R. Request up to date medical information/clarification

    O. Options canvas, identify, consider, assess, prioritize, test

    P. Participation this is a co-operative, collaborative TEAM SPORT!

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  • 3 weeks into the new arrangement, John brought Sunny his doctors letter, advising tests had revealed a brain tumour.

    John would need an operation, at least 3 months of rehabilitative therapy, and possibly radiation or chemo.

    John would need to apply for disability leave starting next month, wh