Download - 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. John’s doctor is still trying to diagnose the problem.

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STOP!

D. Don’t 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 marathon…not 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 individual’s 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, John’s supervisor, Marla:

• told Sunny she was fed up with John’s unreliability and reduced productivity

• flatly refused to consider implementing any of John’s requested modifications, saying “John is fine, he is simply milking the system”

• said her group couldn’t function properly if Talk2Me grants John’s 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!




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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 employer’s 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!





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• 3 weeks into the new arrangement, John brought Sunny his doctor’s

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, when

his surgery was scheduled.

• With John’s permission, Sunny shared this news with the CEO and

Marla.

• While Marla now grudgingly conceded John was not faking all along,

she asked to fill John’s position as soon as he started his leave.

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Accommodating the absent employee

• Accommodation is a marathon…not a sprint

• Providing disability benefits is not a substitute for accommodation and

does not, in itself, satisfy or excuse the duty to accommodate

• Keep communication lines open during the absence (“you are still on

the team”) (but be sensitive to optics)

• Request updates at reasonable intervals (but be sensitive to timing)

• Be cautious and sensitive to the risk when backfilling the absent

employee’s position (interim solutions help control risks)

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• John had his surgery, started STD, but his rehabilitation was much

slower than initially expected.

• His doctors confirmed John had residual cognitive impairment – he

would require speech and other rehabilitative therapy before he could

be expected to return to gainful employment.

• After 6 months on STD leave, John was approved for LTD benefits for

at least 3 months.

• Marla had a temporary employee filling in for John until this point – she

now wants to hire that temp employee (who has outperformed John

from day one) on a permanent basis.

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• After 3 months on LTD, an updated doctor’s report advised that John

would not be able to return to work for at least another 12 months.

• After hearing that, Marla hired the temp permanently – currently no

open position is available in Marla’s translation group.

• By now, John has been absent from work on STD and LTD for just

over 18 months.

• Talk2Me has just learned that John’s LTD benefits are about to be

terminated because....

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(UN) HAPPY (?) ENDING NO. 1

…… he has reached the “change of definition” date under the LTD policy.

• The insurer says John is not disabled from “any occupation”, though

based on medical reports he is permanently disabled from his “own

occupation” – so, John is no longer entitled to continued LTD benefits.

• John can’t afford to stay off work without benefits, so he tells Talk2Me he

wants to come back to work.

• Marla is emphatic that she has no job for John. Furthermore, the

company has been struggling a bit financially lately.

• Talk2Me asks: now what?

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(UN) HAPPY (?) ENDING NO. 2

…… he has recovered sufficiently to return to work (RTW).

• His doctor says John is no longer disabled from his “own occupation”

and can start a work-hardening RTW program next week.

• Marla is emphatic that she has no job for John. Furthermore, the

company has been struggling a bit financially lately.

• Talk2Me asks: now what?

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STOP!





and

R. Rinse and repeat



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• Denial of disability benefits end of disability

• Re-engaging the active accommodation process

• reinstatement obligations

• evaluating changed circumstances

• confirming fitness for RTW if necessary/reasonable

• Frustration of contract/undue hardship

• any reasonable likelihood of returning to work in reasonably

foreseeable future?

• if so, ultimately, can this employee, with reasonable

accommodation, resume performing the essential elements of

his/her position?

• note an emerging federal vs. provincial schism as to whether

frustration can apply when the disability is work-related

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Cut-off of disability benefits: what does it mean?

Undue hardship

What constitutes undue hardship?

• falls on spectrum: > inconvenient but < practically impossible

• requires a contextual assessment (considers both employer’s and

employee’s circumstances)

• assessment must be individualized, based on actual (not speculative

or assumed) circumstances and evidence

• Ontario Human Rights Code factors to consider:

• cost/outside sources of funding

• health and safety

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(Not) Undue hardship

What is(n’t) considered undue hardship?

• speculative “floodgates” fears

• employee morale (resentful co-workers)

• effect on rights of other employees (burdening others)

• inconvenience/nuisance/annoyance

• some reasonable level of disruption of the workplace and/or collective

agreement

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(

STOP!





and

R. Rinse and repeat



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Summary: employee’s obligations

Employee obligations in accommodation process:

1. communicate in a timely way

2. generally, advise employer of need for accommodation

3. provide employer with sufficient information

4. consider all reasonable suggestions/alternatives for accommodation

(not just employee’s preference)

5. allow employer reasonable time to test alternatives and adjust

6. co-operate with employer

7. facilitate implementation of accommodation

8. advise employer if/as needs change

9. accept reasonable (not perfect) accommodation

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Summary: employer’s obligations

Employer obligations in accommodation process:

1. determine if employee requires accommodation

2. meaningfully consider possible accommodations, including employee

suggestions

3. discuss options with employee

4. respond within reasonable time

5. maintain confidentiality to the extent feasible

6. request necessary information/updates

7. explain which accommodations are impossible, why, and what

alternatives are offered

8. implement and follow-up

9. modify accommodations and adjust if/as required

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The Final Word

• Right or wrong, fair or not, accommodation is a heavy and mandatory

burden with significant financial and reputational risks

• Make it a priority to implement and enforce strong policies, frequent and

effective training, and meaningful protocols… then follow your policies

and protocols

• Take every request for accommodation seriously and ensure requests

are directed to the right people with the right skills to deal with them

properly

• Your efforts must be sincere and demonstrable

• Be careful, reasonable, flexible, fair... and try to be/stay compassionate

Someday... your turn may come.

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Resources

OHRC Policy on preventing discrimination based on mental health disabilities and

addictions

http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-

and-addictions

CHRC Accommodation Works!

http://www.chrc-

ccdp.ca/sites/default/files/accommodation_works_application_manual_format.pdf

http://www.chrc-ccdp.gc.ca/fitness2work/index.html

OHRC Policy and guidelines on disability and the duty to accommodate

http://www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate

OHRC E-learning re AODA

http://www.ohrc.on.ca/en/learning/working-together-code-and-aoda

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http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions















































Thank You

Montréal Ottawa Toronto Hamilton Waterloo Region Calgary Vancouver Beijing Moscow London

Melanie Polowin

Partner, Ottawa

[email protected]

mailto:[email protected]