LABOUR
LAW TIP OF THE DAY
An
employer can generally terminate an employee if the employee's absences
are excessive and there is no reasonable expectation that the employee
will be able to maintain regular attendance in the future. When dealing
with a disabled employee who is excessively absent, accommodation
efforts must be exhausted prior to termination.
LABOUR
LAW TIP OF THE DAY
Employers
are permitted to place disabled employees in lower paying positions
if there is no other reasonable form of accommodation. There must
be an exhaustive search for accommodation at the same wage level before
an employee can be placed in a lower paid position.
LABOUR
LAW TIP OF THE DAY
An
employer has the obligation to accommodate a pregnant employee who
is unable as a result of the pregnancy to do the full duties of her
job by looking at modified work opportunities.
LABOUR
LAW TIP OF THE DAY
Where
employers have not utilized sufficient creativity, investigation efforts
or co-operation in devising an accommodation, legal decision-makers
have directed them to return to the disability-management drawing
board.
Disability
an image problem says supervisor
The
duty to accommodate is a legal obligation that comes from two sources:
*
Human rights legislation (specifically, the right to equal treatment);
and * Rulings from the Supreme Court of Canada.
Employers
and unions in Canada are required to make every reasonable effort,
short of undue hardship, to accommodate an employee who comes under
a protected ground of discrimination under Canadian human rights legislation.
In most cases, the protected ground requiring an accommodation is
a disability, although several recent accommodation cases have involved
other protected grounds such as religion, gender and race. The law
requires an employer to determine whether existing positions can be
adjusted, adapted or modified for the employee, or whether there are
other positions in the workplace that might be suitable for the employee.
The employer must accommodate up to the point of ?undue hardship.?
While there is no single legal definition of this term, the various
legal rulings on accommodation make it clear that this effort must
be substantial.
The
Supreme Court of Canada rulings provide much direction in this area.
In a series of important decisions that began in 1985, the Supreme
Court has said that:
*
Accommodation is a significant human rights obligation, and must be
a central feature in the Canadian workplace.
*
The duty rests on three sets of shoulders: employers, unions and the
employee seeking the accommodation. All assume legal responsibility
for ensuring the success of an accommodation request.
*
The primary responsibility rests with the employer, because it has
the ultimate control over the workplace.
*
The union must co-operate with the accommodation process, and not
unreasonably block a viable accommodation option.
*
The employee is expected to participate in the accommodation process,
and cannot refuse a reasonable accommodation offer.
*
In unionized workplaces, collective agreement provisions are to be
respected, but they may on occasion have to be waived if they unreasonably
block a viable accommodation option.
In three decisions in 1999 and 2000, the Supreme Court has clarified
and broadened the extent of the duty. It has stated that:
*
Accommodating measures must be taken unless no further accommodation
is possible without imposing undue hardship. The standard now appears
to be impossibility, not merely impracticable.
*
Employers and unions must be sensitive to the various ways that individual
capabilities may be accommodated.
*
Workplace standards -- such as lifting requirements or work schedules
-- that unintentionally distinguish among employees on a protected
human rights ground (i.e., disability, gender, religion, etc.) may
be struck down or modified. Employers must build liberal conceptions
of equality into workplace practices.
*
Courts, labour arbitrators and human rights tribunals are to take
a strict approach to exemptions from the duty to accommodate. Exemptions
are to be permitted only where they are reasonably necessary to the
achievement of legitimate business-related objectives.
In
British Columbia (PSERC) v. British Columbia Government and Service
Employees? Union (1999), its most comprehensive decision on accommodation,
the Supreme Court said that employers must ask themselves a series
of questions when considering an employee request for accommodation.
These questions include:
*
Have alternative approaches been investigated that do not have a discriminatory
effect, such as individual testing?
*
If alternative standards have been investigated and found to be capable
of fulfilling the employer?s purpose, why were they not implemented?
*
Is it necessary to have all employees meet the single standard for
the employer to meet its legitimate purpose? As well, could standards
reflective of group or individual differences and capabilities be
established?
*
Is there a way to do the job that is less discriminatory while still
accomplishing the employer?s business objectives?
*
Is the standard properly designed to ensure that the desired qualification
is met without placing an undue burden on those to whom the standard
applies?
*
Have other parties in the workplace -- the union and the individual
employee seeking accommodation -- fully assisted in the search for
a solution?
Arbitrators
are now beginning to specifically apply these questions to accommodation
cases before them.
LABOUR
LAW TIP OF THE DAY
Where
employers have not utilized sufficient creativity, investigation efforts
or co-operation in devising an accommodation, legal decision-makers
have directed them to return to the disability-management drawing
board.
LABOUR
LAW TIP OF THE DAY
The
employer bears the legal responsibility to initiate the process of
accommodation. The Canadian Human Rights Tribunal has said that, at
the very least, this involves "an examination of the employer's current
medical condition, the prognosis for recovery and the employee's capabilities
for alternative work." See: Conte v. Rogers Cablesystems (1999), 00
C.L.L.C. 230-005 (C.H.R.T.).
LABOUR
LAW TIP OF THE DAY
Employees
with a long-term disability pose significant accommodation challenges.
But arbitrators in Canada have been clear that employers are not required
to provide an accommodation to an employee who cannot perform the
essential duties of an available position and whose disability offers
no foreseeable prospect of improvement.
LABOUR
LAW TIP OF THE DAY
An
employer must look beyond the employee's existing position when considering
possible accommodation options.
Tuesday,
June 26, 2007
When
faced with an employee who has a mental or physical disability, employers
must weigh the risk of a relapse. In safety-sensitive positions, employers
will be given greater latitude if they refuse to accommodate an employee
because of the risk of a relapse. This does not mean that safety-sensitive
positions are immune from the obligations of human rights law. On
the contrary, an Employer must have a clear basis for its decision
to refuse accommodation.
LABOUR
LAW TIP OF THE DAY
Commonly,
the issue of a job transfer arises in the context of accommodation.
Can an employee with a disability request or refuse a transfer, should
it impact upon his or her impairment? The answer invariably goes to
the facts of each case, and involves an assessment as to whether the
requirement for an accommodation has been made out, and whether a
persuasive undue hardship defence has been established.
Monday,
June 25, 2007
Work-related
misconduct, such as absenteeism arising from alcohol or drug dependency,
can be viewed as non-culpable and should not be subject to a disciplinary
response from an employer, although it can be dealt with like other
non-culpable behaviour.
Friday,
June 22, 2007
Employers
are often faced with situations of employment-related misconduct involving
drug and alcohol use over which the employee has control and which
is not an illness. In these circumstances, the issue is relatively
straight-forward, and a disciplinary response (as opposed to accommodation)
is often justifiable.
Thursday,
June 21, 2007
In
any permanent accommodation, an employee has to be able to perform
the essential job duties of the existing, re-structured or newly-assigned
position.
Wednesday,
June 20, 2007
The
duty to accommodate in Canadian labour law is not limitless. Arbitrators
and courts have recognized that accommodation always requires a balancing
act between two underlying issues: the right of an employee with a
disability to equal treatment; and the right of an employer to operate
a productive workplace.
Tuesday,
June 19, 2007
Panic
attacks are short-lived, but unpredictable. This condition has been
recognized as both a mental and physical disability. See: Sansome
v. Dodd (cob "Portside Paul's Fish and Chips") (1991), 15 CHRR D/393,
[1991] BCCHRD No. 17 (QL); Silzer v. Chaparral Industries (86) Inc.
(1994), 20 CHRR D/155 (BCCHR).
LABOUR
LAW TIP OF THE DAY
Where
employers have not utilized sufficient creativity, investigation efforts
or co-operation in devising an accommodation, legal decision-makers
have directed them to return to the disability-management drawing
board.
Monday,
June 18, 2007
A
diagnosis of kleptomania was accepted as a disability in Canadian
National Railway Co. v. CAW-Canada (1994), 43 LAC (4th) 129 (M.G.
Picher). The arbitrator concluded, however, that CNR should not be
required to reinstate the grievor as there was every indication the
employee would continue stealing, and the duty to accommodate his
disability did not require the employer to impose police measures
in order to deter his conduct.
LABOUR
LAW TIP OF THE DAY
An
employer must look beyond the employee's existing position when considering
possible accommodation options.
Friday,
June 15, 2007
Gender
identity disorder is a syndrome recognized in the DSM-IV. It is a
broad term, encompassing a variety of conditions relating to gender
self-identification. Individuals may feel the need to manifest certain
attributes of the opposite sex (e.g., cross-dressing) or, in more
extreme forms, may be convinced they belong to the other gender. The
term "gender dysphoria" is used to describe the psychological distress
experienced by those at odds with their biological sex.
LABOUR
LAW TIP OF THE DAY
In
certain circumstances, an employer may be entitled to terminate a
disabled employee for innocent or "non-culpable" absenteeism. However,
the employer must first warn the employee that his or her employment
is in jeopardy if their attendance does not improve.
Thursday,
June 14, 2007
Stress
may cause a physical disability. See, for example, Ram v. McDonald's
Restaurants of Canada Ltd., [1991] BCCHRD No. 23 (QL where work-related
stress caused the complainant to suffer from migraines and ulcers.
LABOUR
LAW TIP OF THE DAY
If
there is a connection between a disabled employee's misconduct and
the disability, an employer is required to provide accommodation to
the point of undue hardship.
Wednesday,
June 13, 2007
Human
rights tribunals and labour arbitrators have recognized mood and/or
panic disorders brought about by trauma as mental disabilities.
LABOUR
LAW TIP OF THE DAY
A
viable accommodation can override the provisions of a collective agreement,
unless the proposed accommodation would significantly interfere with
the rights of other employees.
Tuesday,
June 12, 2007
A
disability or handicap includes ailments which do not in fact give
rise to any functional limitations as well as the subjective perception
of such ailments when they are in fact absent: Quebec (Commission
des droits de la personne et des droits de la jeunesse) v. Montreal
City, 2000 SCC 27 at para. 36.
Monday,
June 11, 2007
It
appears clear that an employer does not have to create an unproductive
job in an effort to accommodate. See, for example, Re Toronto (Board
of Education) and C.U.P.E., Loc. 134 (1994), 39 L.A.C. (4th) 137 at
162 (Ont., Brent).
Friday,
June 08, 2007
For
accommodation purposes, a "handicap" or "disability" is the consequence
of a disease, injury or condition that impairs one or more facets
of a person's ability to perform the daily functions of life. The
impairment may be temporary, long-lasting or permanent. It may be
an actual disability, or only one that is perceived as such in the
eyes of others, or even an impairment that one used to have.
LABOUR
LAW TIP OF THE DAY
In
determining whether a condition constitutes a disability requiring
accommodation, it is generally appropriate to consider whether the
condition in question creates barriers to employment opportunities
and participation in workplace activities.
Thursday,
June 07, 2007
In
a recent arbitration decision, Arbitrator Riley ruled that it was
unfair for the government to withhold sick leave benefits to a person
who provided medical notes to the employer confirming an illness.
The grievor provided a medical certificate saying that she would be
off work for a month on May 3rd. The government denied her sick leave
benefits but did not question the medical certificate until June 1st.
The grievor provided a second medical certificate on June 2nd, indicating
that she should be off work until July. Again, the government said
the certificate was inadequate, but did not respond until June 16th.
The arbitrator ruled that the grievor was entitled to sick leave benefits
from April until her return to work on July 8th because she was too
ill to work and was not told to return until July 7th. The arbitrator
noted that while the certificates were arguably inadequate, it was
unfair and unreasonable for sick leave benefits to be withheld. The
employer was ordered to compensate the grievor for the period in question.
What
Should You Do?
Observe
your doctor?s advice. If you provide a doctor?s note that says you
should be off work, you are entitled to sick leave benefits. If the
employer requires more information, it is their responsibility to
tell you what is needed. While employers are entitled to request this
information, there are limits to what must be provided. If you are
in a similar situation or if your employer asks to speak with your
doctor directly, please contact your Union representative.
Wednesday, June 06, 2007
In
Fraser Lake Sawmills (2000), 93 L.A.C.(4th) 407 (Burke), the grievor
was terminated for smoking marijuana at the employer's worksite in
violation of a "zero-tolerance" policy and other safety rules. The
Union argued that the grievor's misconduct was the result of his drug
addiction and therefore non-culpable. The Arbitrator decided on the
evidence that there was always a possibility of "choice" for the grievor
? he might have chosen not to use drugs at the workplace if the perceived
consequences of doing so were great enough. The Arbitrator held that
the mitigating fact of addiction did not overcome the seriousness
of the offence and dismissed the grievance.
LABOUR
LAW TIP OF THE DAY
One
of the common features of mental disability may be the difficulty
of its detection. In this way, mental disability is often "invisible."
Mental disability is often characterized by an inability to communicate
the nature of the disability, or the accommodation needs. This may
stem from both the stigma associated with a mental disability, and
from the inability to recognize and admit to others the presence of
an underlying disorder as a result of the disorder itself.
Tuesday, June 05, 2007
In Castlegar & District Hospital Society (1997), 64 LAC (4th) 107
(Larson), a nurse stole narcotics from a hospital due to his overwhelming
compulsion to have the drug without ready access to it elsewhere.
The Arbitrator determined that his conduct was not properly considered
"culpable" because it was a product of addiction.
Monday,
June 04, 2007
In
Re Fenwick Automotive (1999), 84 L.A.C. (4th) 271 (Kirkwood), an arbitrator
ruled that an employer can legitimately place a pregnant employee
into a lowed-rated and lower-paying job as an accommodation, if, after
exploring all other possibilities, that is the only viable option.
Friday,
June 01, 2007
In Re Bayer Rubber Inc. (1997), 65 L.A.C. (4th) 261, Arbitrator Watters
ruled that a junior disabled employee could not bump a more senior
employee from his position, unless the employer had first conducted
a thorough review of the workplace and could come up with no other
reasonable accommodations.
Thursday,
May 31, 2007
Arbitration
awards have indicated that it is not reasonable for an employer or
union to simply override the provisions of a collective agreement
without first considering other alternatives that respect the provisions
of the collective agreement.
LABOUR
LAW TIP OF THE DAY
A
last-chance agreement that was drawn up to curb excessive absenteeism,
where alcohol abuse was the source of the work attendance problems,
may be unenforceable if the employer did not allow the employer a
leave from work to enter an alcohol rehabilitation program: Mainland
Sawmills vs. I.W.A , Local 2171, [2002] B.C.A.A.A. No. 69 (Foley)
Wednesday,
May 30, 2007
Even
if a collective agreement does not give the employer a right to it
employees' medical information, an employer may nevertheless claim
such right based on the express or implied management right to direct
the work force, assign employees, assign work and take other initiatives
to ensure the safety or efficiency of the operation.
LABOUR LAW TIP OF THE DAY
A
union may clear itself of human rights liability where it can show
that it took the initiative to propose alternative solutions to a
challenging request for accommodation, and that it would be willing
to waive parts of the collective agreement in ways that would not
disrupt the rights of other employees.
Tuesday, May 29, 2007
If
a collective agreement is specific as to the exact circumstances in
which an employee must provide medical information, an arbitrator
may infer that the requirement cannot be imposed in the absence of
those circumstances.
LABOUR
LAW TIP OF THE DAY
Employees
with mental illnesses may have a lesser obligation to provide a medical
diagnosis, at least at the most acute phases of their disability.
Because the mental disability sometimes interferes with the employee's
ability to comprehend instructions and situations, arbitrators and
human rights tribunals have ruled that the failure to provide a medical
diagnosis in these circumstances would not disentitle the employee
to accommodation or the protection of human rights legislation.
Monday,
May 28, 2007
Arbitrators
and courts have historically taken the view that imposing a medical
examination upon an employee without the employee's consent is a form
of assault, for which the employer must find justification either
in a statute or the collective agreement.
LABOUR LAW TIP OF THE DAY
Employees
with mental illnesses may have a lesser obligation to provide a medical
diagnosis, at least at the most acute phases of their disability.
Because the mental disability sometimes interferes with the employee's
ability to comprehend instructions and situations, arbitrators and
human rights tribunals have ruled that the failure to provide a medical
diagnosis in these circumstances would not disentitle the employee
to accommodation or the protection of human rights legislation.
Friday,
May 25, 2007
There
is no doubt that a union must make its best efforts to facilitate
an accommodation. Accommodation may require, as a last resort, some
disruption or the temporary suspension of the terms and provisions
of a collective agreement. Whether such disruption may be required
depends on whether or not alternative accommodation exists and whether
the accommodation would result in undue hardship to the employer or
the union.
LABOUR
LAW TIP OF THE DAY
The Federal Court (Trial Division) in Guibord v. The Queen, (1996)
97 C.L.L.C. 230-019 (F.C.-T.D) has found that when a disabled employee
refuses an offer of alternative employment at another location, s/he
must provide a reasonable explanation for the refusal. This refusal
must be based upon more than a mere reluctance to accept a job that
is not the same as the old position.
Thursday
May 24, 2007
LABOUR
LAW TIP OF THE DAY
The denial of sick leave benefits to a female employee during the
period of normal childbirth and recovery has been recently found by
two Ontario court decisions to be discriminatory.
Wednesday,
May 23, 2007
Arbitrators
have dismissed grievances where employees seeking an accommodation
have requested the opportunity to bump more senior employees. Seniority
is considered a prized employee right, not to be interfered with lightly.
LABOUR
LAW TIP OF THE DAY
Where
a mental illness causes erratic behaviour at work, recent rulings
have said that the employer in some cases ought to have been aware
of a link between the work problems and the employee's condition.
Tuesday,
May 22, 2007
Where
modified duties are available for a disabled employee, further accommodation
which interferes with the provisions of a collective agreement and
the rights of other employees may not be reasonable.
LABOUR
LAW TIP OF THE DAY
The
fact that an employee did not disclose a mental disability when hired
did not alter the employer's duty to accommodate: Willems-Wilson v
Allbright Drycleaners Ltd., 98 C.L.L.C 230-007 (B.C.H.R.T).
Monday,
May 21, 2007
While
undue hardship is usually measured by considering economic factors
for the employer, it is also measured in terms of impact on the seniority
rights of other employees as provided in the collective agreement.
LABOUR LAW TIP OF THE DAY
An
employer has the obligation to accommodate a pregnant employee who
is unable as a result of the pregnancy to do the full duties of her
job by looking at modified work opportunities.
Thursday,
May 17, 2007
In
situations involving the re-assignment of pregnant employees, arbitrators
and human rights tribunals will carefully assess the employer's reasons.
If, for example, the employer placed a woman in a lower-rated job
as soon as it learned that she was pregnant without any further basis,
that would likely amount to discrimination.
LABOUR
LAW TIP OF THE DAY
Employees
with a long-term disability pose significant accommodation challenges.
But arbitrators in Canada have been clear that employers are not required
to provide an accommodation to an employee who cannot perform the
essential duties of an available position and whose disability offers
no foreseeable prospect of improvement.
Wednesday,
May 16, 2007
Where
accommodation requires moving an employee to a lower-rated position,
the duty to accommodate normally does not extend to maintaining the
higher wage rate.
LABOUR
LAW TIP OF THE DAY
The
employer bears the legal responsibility to initiate the process of
accommodation. The Canadian Human Rights Tribunal has said that, at
the very least, this involves "an examination of the employer's current
medical condition, the prognosis for recovery and the employee's capabilities
for alternative work." See: Conte v. Rogers Cablesystems (1999), 00
C.L.L.C. 230-005 (C.H.R.T.).
Tuesday,
May 15, 2007
An
employer is entitled to place an employee with a disability into a
lower-rated position, with lower pay, if there are no other available
measures that would allow the employee to perform the essential features
of the work properly.
LABOUR
LAW TIP OF THE DAY
In
certain circumstances, an employer may be entitled to terminate a
disabled employee for innocent or "non-culpable" absenteeism. However,
the employer must first warn the employee that his or her employment
is in jeopardy if their attendance does not improve.
Monday,
May 14, 2007
The
traditional scheme of progressive discipline may not be applied to
employees with substance dependencies as it is to employees who do
not have disabilities.
LABOUR
LAW TIP OF THE DAY
If
there is a connection between a disabled employee's misconduct and
the disability, an employer is required to provide accommodation to
the point of undue hardship. Frank Wright Chairperson C.A.W. Local
3007 Ph. 791 5391 Fax 261 6656 Office 261 6333
Friday,
May 11, 2007
Having
a substance dependency does not excuse an employee from his/her obligation
to report for work free of drugs or alcohol and, accordingly, arbitrators
have upheld disciplinary penalties for employees with substance dependencies
who have committed employment offences such as reporting to work under
the influence of drugs or alcohol, or consuming drugs or alcohol at
the workplace.
Thursday,
May 10, 2007
Knowledge
of drug or alcohol use alone, absent an indication of addiction, does
not oblige an employer to accommodate an employee.
LABOUR
LAW TIP OF THE DAY
In
Cameron and Fletcher Challenge Canada Ltd. (1995), 24 C.H.R.R. D/506
(B.C.C.H.R.), the B.C. Human Rights Tribunal held that an affliction
of panic attacks could constitute a mental disability for the purposes
of human rights legislation.
Wednesday,
May 09, 2007
Employers
can discipline employees for substance-related conduct only where
their conduct is both blameworthy and work-related. Whether the conduct
is blameworthy will depend on whether the employee is dependent to
the point of addiction.
LABOUR
LAW TIP OF THE DAY
Employers
should be aware that accommodation of employees with cognitive disorders
may include waiving or modifying prerequisite aptitude tests if they
have the effect of "screening out" - and thus discriminating against
- applicants or employees with cognitive disorders where accommodation
is possible without undue hardship.
Tuesday,
May 08, 2007
While
an employer is entitled to medical information regarding disabled
employees, it must choose the least intrusive means and only seek
information that is required. The employer is not entitled to the
specific diagnosis, the specific treatment or the date when the employee
first visited his/her physician. Other information is allowed only
if it is necessary and reasonable in the circumstances.
LABOUR
LAW TIP OF THE DAY
In
determining whether a condition constitutes a disability requiring
accommodation, it is generally appropriate to consider whether the
condition in question creates barriers to employment opportunities
and participation in workplace activities.
Monday,
May 07, 2007
An
employer is not required to provide the perfect accommodation where
other possibilities for a reasonable accommodation exist. Employees
do not have an unbridled entitlement to dictate the terms of accommodation
and cannot require an employer to modify the requirements where there
is no compelling reason to do so.
LABOUR
LAW TIP OF THE DAY
If
an employee exhibits symptoms which appear to suggest that s/he suffers
from a mental disability requiring accommodation, the employer may
be required to undertake appropriate inquiries to determine whether
such is the case and, if so, what accommodation is necessary.
Friday,
May 04, 2007
Unions
should ensure that employees are forthcoming about their disability.
An employee's position is strengthened if evidence can be presented
to the employer that there is minimal risk of reoccurrence and rehabilitation
is well underway. It will be more difficult to deny accommodation
to an employee when the employer is informed of the positive steps
taken by the employee.
LABOUR
LAW TIP OF THE DAY
Under
Canadian human rights law, the right to equal treatment without discrimination
because of disability includes the right to equal treatment because
a person has or has had a disability or is believed to have or have
had a disability. Accordingly, an employee need not have an actual
present disability in order to be protected from direct or indirect
discrimination or to be entitled to accommodation in his/her employment.
Thursday, May 03, 2007
In
a labour arbitration decision from British Columbia, a nursing home
which had suspended a nurse with a bi-polar disorder for making several
medication errors was found not to have appropriately accommodated
her: Shuswap Lake General Hospital v. British Columbia Nurses' Union
(Lockie Grievance) [2002] B.C.C.A.A.A. No. 21, 31 January 2002. (J.
Gordon).
LABOUR
LAW TIP OF THE DAY
Workplace
policies are only effective if they are regularly updated and consistent
with new developments in the law. It is good practice for employers
to have a designated individual assigned to policy development and
implementation.
Wednesday,
May 02, 2007
When
faced with an employee who has a mental or physical disability, employers
must weigh the risk of a relapse. In safety-sensitive positions, employers
will be given greater latitude if they refuse to accommodate an employee
because of the risk of a relapse. This does not mean that safety-sensitive
positions are immune from the obligations of human rights law. On
the contrary, an Employer must have a clear basis for its decision
to refuse accommodation.
LABOUR
LAW TIP OF THE DAY
Unions
have a role in educating members who need to understand why and how
accommodation is taking place in the workplace: for example, to prevent
resentment against an employee who is working a modified shift schedule
or has modified duties and is perceived as "getting off easy" by coworkers.
1
Tuesday,
May 01, 2007
Work-related
misconduct, such as absenteeism arising from alcohol or drug dependency,
can be viewed as non-culpable and should not be subject to a disciplinary
response from an employer, although it can be dealt with like other
non-culpable behaviour.
Monday,
April 30, 2007
Employers
are often faced with situations of employment-related misconduct involving
drug and alcohol use over which the employee has control and which
is not an illness. In these circumstances, the issue is relatively
straight-forward, and a disciplinary response (as opposed to accommodation)
is often justifiable.
LABOUR
LAW TIP OF THE DAY
Employers
have a legal obligation to ensure that employees are protected from
human rights violations in the workplace. One of the most effective
prevention techniques is to ensure that the workforce, including the
management team, is properly trained and educated on human rights
issues
Friday, April 27, 2007
In
any permanent accommodation, an employee has to be able to perform
the essential job duties of the existing, re-structured or newly-assigned
position.
LABOUR
LAW TIP OF THE DAY
If
a collective agreement provision unreasonably blocks an accommodation,
the agreement might have to be modified. However, a union may be able
to avoid sharing in the employer's liability if it can show that it
had opposed the inclusion of the disputed provision during negotiations.
Thursday,
April 26, 2007
The
duty to accommodate in Canadian labour law is not limitless. Arbitrators
and courts have recognized that accommodation always requires a balancing
act between two underlying issues: the right of an employee with a
disability to equal treatment; and the right of an employer to operate
a productive workplace.
LABOUR
LAW TIP OF THE DAY
Commonly,
the issue of a job transfer arises in the context of accommodation.
Can an employee with a disability request or refuse a transfer, should
it impact upon his or her impairment? The answer invariably goes to
the facts of each case, and involves an assessment as to whether the
requirement for an accommodation has been made out, and whether a
persuasive undue hardship defence has been established.
Wednesday,
April 25, 2007
Panic
anxiety disorder is a psychiatric condition of anxiety combined with
four physical symptoms: anxiousness, breathlessness, dizziness and
palpitations. Panic attacks are short-lived, but unpredictable. This
condition has been recognized as both a mental and physical disability.
See: Sansome v. Dodd (cob "Portside Paul's Fish and Chips") (1991),
15 CHRR D/393, [1991] BCCHRD No. 17 (QL); Silzer v. Chaparral Industries
(86) Inc. (1994), 20 CHRR D/155 (BCCHR).
LABOUR
LAW TIP OF THE DAY
The
Federal Court (Trial Division) in Guibord v. The Queen, (1996) 97
C.L.L.C. 230-019 (F.C.-T.D) has found that when a disabled employee
refuses an offer of alternative employment at another location, s/he
must provide a reasonable explanation for the refusal. This refusal
must be based upon more than a mere reluctance to accept a job that
is not the same as the old position.
Tuesday,
April 24, 2007
A
diagnosis of kleptomania was accepted as a disability in Canadian
National Railway Co. v. CAW-Canada (1994), 43 LAC (4th) 129 (M.G.
Picher). The arbitrator concluded, however, that CNR should not be
required to reinstate the grievor as there was every indication the
employee would continue stealing, and the duty to accommodate his
disability did not require the employer to impose police measures
in order to deter his conduct.
LABOUR
LAW TIP OF THE DAY
The
denial of sick leave benefits to a female employee during the period
of normal childbirth and recovery has been recently found by two Ontario
court decisions to be discriminatory.
Monday,
April 23, 2007
Gender
identity disorder is a syndrome recognized in the DSM-IV. It is a
broad term, encompassing a variety of conditions relating to gender
self-identification. Individuals may feel the need to manifest certain
attributes of the opposite sex (e.g., cross-dressing) or, in more
extreme forms, may be convinced they belong to the other gender. The
term "gender dysphoria" is used to describe the psychological distress
experienced by those at odds with their biological sex.
LABOUR
LAW TIP OF THE DAY
Where
a mental illness causes erratic behaviour at work, recent rulings
have said that the employer in some cases ought to have been aware
of a link between the work problems and the employee's condition.
Friday,
April 20, 2007
Stress
may cause a physical disability. See, for example, Ram v. McDonald's
Restaurants of Canada Ltd., [1991] BCCHRD No. 23 (QL where work-related
stress caused the complainant to suffer from migraines and ulcers.
LABOUR
LAW TIP OF THE DAY
The
duty to accommodate in Canadian labour law is not limitless. Arbitrators
and courts have recognized that accommodation always requires a balancing
act between two underlying issues: the right of an employee with a
disability to equal treatment, and the right of an employer to operate
a productive workplace.
Thursday,
April 19, 2007
An
Ontario arbitration board rejected a grievor's claim that a mental
disorder underlay his inappropriate internet use: Seneca College and
OPSEU (Re)(2002), 109 L.A.C. (4th) 334.
LABOUR
LAW TIP OF THE DAY
Where
employers have not utilized sufficient creativity, investigation efforts
or co-operation in devising an accommodation, legal decision-makers
have directed them to return to the disability-management drawing
board.
Wednesday,
April 18, 2007
When
making reasonable inquiries concerning an employee they have reason
to believe is mentally disabled, employers should consider focussing
on the accommodation that may be needed by an employee, rather than
on the nature of the disability itself.
LABOUR
LAW TIP OF THE DAY
An
employer must look beyond the employee's existing position when considering
possible accommodation options.
Tuesday,
April 17, 2007
Mental
disabilities are often characterized by an inability of the sufferer
to identify either the nature of the illness, or the needs for accommodation.
As a result, the employer may be required to take positive steps to
accommodate the employee even where he has not asked for assistance
or identified a problem, and even where the employee denies that there
is a problem at all.
LABOUR
LAW TIP OF THE DAY
Employees
with a long-term disability pose significant accommodation challenges.
But arbitrators in Canada have been clear that employers are not required
to provide an accommodation to an employee who cannot perform the
essential duties of an available position and whose disability offers
no foreseeable prospect of improvement.
Monday,
April 16, 2007
Generally
speaking, the terms of any relevant statute, contract of employment
or collective agreement should be assessed to determine the extent
of the employer's right to make inquiries regarding an employee's
physical and mental condition.
LABOUR
LAW TIP OF THE DAY
The
employer bears the legal responsibility to initiate the process of
accommodation. The Canadian Human Rights Tribunal has said that, at
the very least, this involves "an examination of the employer's current
medical condition, the prognosis for recovery and the employee's capabilities
for alternative work." See: Conte v. Rogers Cablesystems (1999), 00
C.L.L.C. 230-005 (C.H.R.T.).
Friday,
April 13, 2007
Under
Canadian human rights law, someone who is erroneously perceived as
suffering from a mental disability when they in fact have no such
disability is also protected by the prohibition on discrimination.
A viable accommodation can override the provisions of a collective
agreement, unless the proposed accommodation would significantly interfere
with the rights of other employees.
Thursday,
April 12, 2007
Where
an accommodation results in "substantial interference" with the rights
of other employees, the union may argue that it results in undue hardship.
LABOUR
LAW TIP OF THE DAY
Unions
have a role in educating members who need to understand why and how
accommodation is taking place in the workplace: for example, to prevent
resentment against an employee who is working a modified shift schedule
or has modified duties and is perceived as "getting off easy" by coworkers.
Wednesday,
April 11, 2007
An
assignment to a position outside the bargaining unit may be an acceptable
accommodation, but only after all other reasonable accommodation options
within the unit have been exhausted.
LABOUR
LAW TIP OF THE DAY
Employers
have a legal obligation to ensure that employees are protected from
human rights violations in the workplace. One of the most effective
prevention techniques is to ensure that the workforce, including the
management team, is properly trained and educated on human rights
issues.
Tuesday,
April 10, 2007
In
the absence of express language in the collective agreement, a disability
does not generally give employees entitled to an accommodation additional
rights, such as the right to bump incumbent employees or protection
against layoff.
LABOUR
LAW TIP OF THE DAY
In
Cameron and Fletcher Challenge Canada Ltd. (1995), 24 C.H.R.R. D/506
(B.C.C.H.R.), the B.C. Human Rights Tribunal held that an affliction
of panic attacks could constitute a mental disability for the purposes
of human rights legislation.
Monday,
April 09, 2007
Where
alternative work or modified duties is not available as a means of
accommodating disabled employees, the duty to accommodate has allowed
the overriding of the terms of a collective agreement, but only after
consideration of the rights of other employees. The placement of less
senior employees in vacant positions, for example, has been upheld
where that accommodation caused the least amount of interference with
the rights of other employees.
Friday,
April 06, 2007
The
caselaw has held that in order to satisfy the duty to accommodate
disabled employees, employers should strive for that accommodation
which is least disruptive to the rights of all employees under the
agreement.
LABOUR
LAW TIP OF THE DAY
One
of the common features of mental disability may be the difficulty
of its detection. In this way, mental disability is often "invisible."
Mental disability is often characterized by an inability to communicate
the nature of the disability, or the accommodation needs. This may
stem from both the stigma associated with a mental disability, and
from the inability to recognize and admit to others the presence of
an underlying disorder as a result of the disorder itself.
Thursday,
April 05, 2007
Where
disabled employees are already adequately accommodated, they are precluded
from using the duty to accommodate as a springboard to job promotion
and advancement or automatic entitlement to a job vacancy.
LABOUR
LAW TIP OF THE DAY
Adjudicators
have cited the following objective characteristics in employees that
may indicate the presence of a mental disability: crying at work;
staying overnight at the workplace; uncharacteristic volatility and
outbursts; and uncharacteristic or extreme indecisiveness.
Wednesday,
April 04, 2007
It
may not reasonable to simply implement the easiest accommodation possible
if the accommodation impacts on the rights of other employees. Instead,
an employer and union are obligated to canvass viable options to accommodate
a disabled employee by considering options that do not create undue
impairment of the rights of others.
LABOUR
LAW TIP OF THE DAY
Under
Canadian human rights law, the right to equal treatment without discrimination
because of disability includes the right to equal treatment because
a person has or has had a disability or is believed to have or have
had a disability. Accordingly, an employee need not have an actual
present disability in order to be protected from direct or indirect
discrimination or to be entitled to accommodation in his/her employment.
Tuesday,
April 03, 2007
A
number of awards suggest that disruption of the normal workings of
a collective agreement to facilitate a duty to accommodate should
only come as a last resort.
LABOUR
LAW TIP OF THE DAY
Workplace
policies are only effective if they are regularly updated and consistent
with new developments in the law. It is good practice for employers
to have a designated individual assigned to policy development and
implementation.
Monday,
April 02, 2007
In
Central Okanagan School District No. 23 v. Renaud, the Supreme Court
of Canada found that a union, like the employer, has a duty to accommodate.
The Court rejected the argument that a union cannot be required to
adopt measures to facilitate an accommodation which conflicts with
the collective agreement.
LABOUR
LAW TIP OF THE DAY
Unions
have a role in educating members who need to understand why and how
accommodation is taking place in the workplace: for example, to prevent
resentment against an employee who is working a modified shift schedule
or has modified duties and is perceived as "getting off easy" by coworkers.
LABOUR
LAW TIP OF THE DAY
Employers
have a legal obligation to ensure that employees are protected from
human rights violations in the workplace. One of the most effective
prevention techniques is to ensure that the workforce, including the
management team, is properly trained and educated on human rights
issues.
Thursday,
March 29, 2007
An
employer has the obligation to accommodate a pregnant employee who
is unable as a result of the pregnancy to do the full duties of her
job by looking at modified work opportunities.
LABOUR
LAW TIP OF THE DAY
A
union may clear itself of human rights liability where it can show
that it took the initiative to propose alternative solutions to a
challenging request for accommodation, and that it would be willing
to waive parts of the collective agreement in ways that would not
disrupt the rights of other employees.
Wednesday,
March 28, 2007
An
Alberta Human Rights Panel affirmed that the duty to accommodate applied
to a pregnant employee such that she could not be passed over for
a promotion because she was away on maternity leave: Jahelka v. Fort
McMurray Catholic Board of Education (2002), CHRR Doc. 02-154 (Alta
H.R.P.); Alberta Human Rights Panel Decision, 6 August 2002.
LABOUR
LAW TIP OF THE DAY
Employees
with mental illnesses may have a lesser obligation to provide a medical
diagnosis, at least at the most acute phases of their disability.
Because the mental disability sometimes interferes with the employee's
ability to comprehend instructions and situations, arbitrators and
human rights tribunals have ruled that the failure to provide a medical
diagnosis in these circumstances would not disentitle the employee
to accommodation or the protection of human rights legislation.
Tuesday,
March 27, 2007
Employers
must be cognizant of their obligation to provide accommodation to
pregnant employees. An individual who is absent from work because
of maternity leave should be granted the same opportunities that she
would have received had she been present at work.
LABOUR
LAW TIP OF THE DAY
If
a collective agreement provision unreasonably blocks an accommodation,
the agreement might have to be modified. However, a union may be able
to avoid sharing in the employer's liability if it can show that it
had opposed the inclusion of the disputed provision during negotiations.
Monday,
March 26, 2007
Generally,
when developing standards to be used for hiring or promotional purposes,
employers are free to determine the relevant attributes that are required
for a position. However, standards cannot directly discriminate against
individuals nor have an adverse impact on applicants based on a prohibited
ground in the human rights legislation.
Friday,
March 23, 2007
Some
employers impose rules about dress which may be incorporated into
the collective agreement. These may take the form of having to wear
a particular uniform, having to wear protective gear or a requirement
that no person may wear a head covering. These rules may come into
direct conflict with religious dress requirements. When they do, there
is a duty to accommodate the person and his/her religious dress requirements,
short of undue hardship.
Thursday,
March 22, 2007
Some
religions require that their members observe periods of prayer at
particular times during a day. This practice may conflict with an
employer's regular work hours or daily routines in the workplace.
The employer has a duty to accommodate the employee's needs for prayer
breaks, short of undue hardship.
Wednesday,
March 21, 2007
The
employer generally has a duty to consider and grant requests for religious
leave, including paid religious leave, unless to do so will cause
undue hardship.
Tuesday,
March 20, 2007
"Religion,"
in a human-rights context, has been given a liberal interpretation,
and can have a meaning that extends well beyond the established views
of a particular sect. Religion may be personal to an individual and
not tied to any particular church or creed. However, the Ontario Labour
Relations Board has commented that it is easier for an applicant to
meet the test if his /her beliefs form part of the dogma of a recognized
religious sect. In most cases, whether a practice or belief is religious
is not the issue in dispute. The issue is typically whether reasonable
accommodation has been extended.
Monday,
March 19, 2007
Like
disability, religion is a protected ground under Canadian human-rights
legislation and, therefore, requires accommodation to the point of
undue hardship.
Friday,
March 16, 2007
More
than any other type of disability, mental disability must be accommodated
on a case-by-case basis. A "one-size-fits-all" approach to accommodation
of mental disability is therefore inappropriate. In developing strategies
for accommodation, the employer and the employee should keep in mind
the purpose of accommodation, which is to remove systemic barriers
to employment, and to achieve integration into the workforce. Participants
should therefore strive to achieve creative and flexible solutions
to workplace barriers for mentally-disabled workers.
Thursday,
March 15, 2007
Discrimination
cannot be established simply by showing that employees who are unable
to work are not afforded the same compensation or benefits given to
employees who do work. Many cases recognize that employers may properly
award some workplace benefits on the basis of employee participation
(i.e. time actually spent actively working, rather than simply maintaining
employment status while on leave). Distinguishing between individuals
on the basis of hours worked does not generally violate equality principles.
Wednesday,
March 14, 2007
An
employer has the obligation to accommodate a pregnant employee who
is unable as a result of the pregnancy to do the full duties of her
job by looking at modified work opportunities.
Tuesday,
March 13, 2007
An
Alberta Human Rights Panel affirmed that the duty to accommodate applied
to a pregnant employee such that she could not be passed over for
a promotion because she was away on maternity leave: Jahelka v. Fort
McMurray Catholic Board of Education (2002), CHRR Doc. 02-154 (Alta
H.R.P.); Alberta Human Rights Panel Decision, 6 August 2002.
Monday,
March 12, 2007
Employers
must be cognizant of their obligation to provide accommodation to
pregnant employees. An individual who is absent from work because
of maternity leave should be granted the same opportunities that she
would have received had she been present at work.
Friday,
March 09, 2007
Generally,
when developing standards to be used for hiring or promotional purposes,
employers are free to determine the relevant attributes that are required
for a position. However, standards cannot directly discriminate against
individuals nor have an adverse impact on applicants based on a prohibited
ground in the human rights legislation.
Thursday,
March 08, 2007
Some
employers impose rules about dress which may be incorporated into
the collective agreement. These may take the form of having to wear
a particular uniform, having to wear protective gear or a requirement
that no person may wear a head covering. These rules may come into
direct conflict with religious dress requirements. When they do, there
is a duty to accommodate the person and his/her religious dress requirements,
short of undue hardship.
Wednesday,
March 07, 2007
Some
religions require that their members observe periods of prayer at
particular times during a day. This practice may conflict with an
employer's regular work hours or daily routines in the workplace.
The employer has a duty to accommodate the employee's needs for prayer
breaks, short of undue hardship.
Tuesday,
March 06, 2007
The
employer generally has a duty to consider and grant requests for religious
leave, including paid religious leave, unless to do so will cause
undue hardship.
Monday,
March 05, 2007
"Religion,"
in a human-rights context, has been given a liberal interpretation,
and can have a meaning that extends well beyond the established views
of a particular sect. Religion may be personal to an individual and
not tied to any particular church or creed. However, the Ontario Labour
Relations Board has commented that it is easier for an applicant to
meet the test if his /her beliefs form part of the dogma of a recognized
religious sect. In most cases, whether a practice or belief is religious
is not the issue in dispute. The issue is typically whether reasonable
accommodation has been extended.
Friday,
March 02, 2007
Like
disability, religion is a protected ground under Canadian human-rights
legislation and, therefore, requires accommodation to the point of
undue hardship.
Thursday,
March 01, 2007
The
Alberta Court of Queen's Bench held that it was discriminatory to
deny a pregnant employee a temporary position because she could not
complete the duration of the contract: United Nurses of Alberta, Local
15 v. Calgary Health Authority, [2002] A.J. No. 1175; Alberta Court
of Queen's Bench, 27 September 2002.
Wednesday,
February 28, 2007
Some
employers impose rules about dress which may be incorporated into
the collective agreement. These may take the form of having to wear
a particular uniform, having to wear protective gear or a requirement
that no person may wear a head covering. These rules may come into
direct conflict with religious dress requirements. When they do, there
is a duty to accommodate the person and his/her religious dress requirements,
short of undue hardship.
Tuesday,
February 27, 2007
Some
religions require that their members observe periods of prayer at
particular times during a day. This practice may conflict with an
employer's regular work hours or daily routines in the workplace.
The employer has a duty to accommodate the employee's needs for prayer
breaks, short of undue hardship.
Monday,
February 26, 2007
The
employer generally has a duty to consider and grant requests for religious
leave, including paid religious leave, unless to do so will cause
undue hardship.
Monday,
February 19, 2007
Depression
subsumes a broad spectrum of mood disorders, many of which have been
found to constitute disabilities, while others have been found not
severe enough to amount to a mental disability for the purposes of
human rights legislation.
Friday,
February 16, 2007
The
American Psychiatric Association publishes a comprehensive listing
of mental disorders entitled "Diagnostic and Statistical Manual of
Mental Disorders, 4th ed." and more commonly referred to as "DSM-IV."
This manual is generally recognized across North America as the "bible"
of established mental disorders. Generally speaking, any condition
which justifies a DSM diagnosis will warrant serious consideration
as a potential disability.
Thursday,
February 15, 2007
It
may be difficult to require an employee to discharge his/her duty
to cooperate in the accommodation process when s/he suffers from a
disability impairing the ability to understand and appreciate the
very need to participate in the accommodation. Individuals suffering
from a mental condition are sometimes incapable of recognizing their
disability, let alone dealing with it.
Wednesday,
February 14, 2007
While
it has been held that an employee has a duty to notify the employer
of his/her disability as part of his/her duty to participate in the
accommodation process, it is not necessary to notify the employer
of the nature of the disability for the complaint of discrimination
to succeed.
Tuesday,
February 13, 2007
In
order for the duty to accommodate to arise in a given case, the complainant
must first establish a prima facie case of discrimination. In the
employment context, this means that the complainant must establish,
on a balance of probabilities, that s/he had a disability at the relevant
time, the employer treated him/her adversely or in a manner that had
adverse effects, and there is evidence from which it is reasonable
to infer that his/her disability was a factor in the adverse treatment.
Monday,
February 12, 2007
Re
Calgary Herald and Calgary Printing Trades Union, Loc. 1 (1995), 52
L.A.C. (4th) 393 (Alta., Tettensor, Chair): the grievor suffered from
chronic fatigue syndrome. The arbitration board held that it would
be undue hardship for the employer to create a part-time position
with flexible hours of work on an unpredictable basis.
Friday,
February 09, 2007
Displacement
of an incumbent employee to accommodate a disabled employee has been
widely viewed as undue hardship.
Thursday,
February 08, 2007
The
Supreme Court of Canada has recognized that effects on other employees
and on collective agreement rights are factors to be considered in
assessing undue hardship.
Wednesday,
February 07, 2007
In
assessing risk to safety in the context of undue hardship, the courts
acknowledge in some contexts that some risk must be tolerated. There
is no guarantee of absolute safety in any context, so the issue becomes
how much safety can be expected.
Tuesday,
February 06, 2007
In
Canada Safeway v. UFCW, Local 401 (Oliphant), [2000] A.G.A.A. No.
43 at para. 190 (Sims), the Arbitrator held that an employer had breached
its duty to accommodate an employee because it failed to allow for
a trial period in assessing her ability to qualify for alternative
positions. Arbitrator Sims found that the employer should assess undue
hardship after an appropriate trial period.
Monday,
February 05, 2007
The
"undue hardship" standard has required employers to search for accommodation
outside of the bargaining unit if necessary, give an employee another
chance and pay a benefit.
Friday,
February 02, 2007
Where
the issue in a grievance is an employer's refusal to accommodate,
the employer bears the onus of proof and may be required to proceed
first in the arbitration: Re Unilever HPC NA and Teamsters, Chemical
Energy and Allied Workers, Loc. 132 (Ward) (2002), 106 L.A.C. (4th)
360 (Ont., Springate).
Thursday,
February 01, 2007
Employment
status may come into play in assessing undue hardship. For example,
the standard of undue hardship may be lower for temporary employees:
Re Canada Post and C.U.P.W. (Reniak) (1998), 73 L.A.C. (4th) 15 at
32 (Canada, Ponak).
Wednesday,
January 31, 2007
It
is central to any determination of undue hardship to consider not
only whether the employer could have done anything to accommodate
a disabled employee but also whether it actually considered accommodation
in a meaningful way.
Tuesday,
January 30, 2007
Possibility
of reinjury to the employee does not constitute a sufficient reason
to deny a return-to-work opportunity ? in other words, undue hardship:
Re Bowater Pulp and Paper Canada Inc. and I.W.A.-Canada, Loc. 2693
(Gosnell) (2000), 87 L.A.C. (4th) 352 (Ont. Haefling).
Monday,
January 29, 2007
In
Re Canada Safeway and U.F.C.W., Loc. 401 (Brandse) (2000), 94 L.A.C.
(4th) 86 (Alta., Smith), Arbitrator Smith found that it would be undue
hardship to reinstate an employee who suffered from mental illness
and had been discharged because of theft. The Arbitrator rejected
conditional reinstatement, finding that it would be undue hardship
for the employer to provide close supervision of the employee.
Friday,
January 26, 2007
"Zero-risk"
workplace policies may interfere with an employer's duty to accommodate.
There are acceptable levels of risk that must be tolerated in any
workplace. The duty to accommodate requires a balance between preventing
safety hazards and providing accommodation to disabled employees.
Thursday,
January 25, 2007
When
faced with the issue of a disabled employee committing a serious workplace
offence, unions should consider the effect that a mental disability
or substance addiction has had on the employee's judgment.
Wednesday,
January 24, 2007
An
employee must be able to perform the essential functions of any accommodation
position, and the employer is not required to offer a permanent accommodation
position that is not productive.
Tuesday,
January 23, 2007
A
last-chance agreement should include a recognition by the employee
of the nature of his/her problem (e.g., that the employee suffers
from alcoholism).
Monday,
January 22, 2007
Some
arbitrators have found last-chance agreements to constitute discrimination,
either because they require an employee who has a disability to meet
a higher standard than other employees, or because they do not take
into account the employer's duty to accommodate.
Friday,
January 19, 2007
Some
arbitrators have ruled that they are not bound by last-chance agreements
that provide for the termination of a substance-dependent employee
before all necessary efforts of accommodation have been exhausted.
Employers cannot prematurely implement a last-chance agreement in
order to side-step the duty to accommodate to the point of undue hardship.
Thursday,
January 18, 2007
Last-chance
agreements may be viewed as evidence of the employer's fulfilment
of its duty to accommodate, and may offer compelling evidence that
the point of undue hardship has been reached.
Wednesday,
January 17, 2007
An
employer who disciplines for substance or alcohol abuse without investigating
whether the employee may have an addiction may have the discipline
overturned on the basis that it has not accommodated the employee
as required by law.
Tuesday,
January 16, 2007
Where
an employee's substance dependence is established, the fact of the
dependence must be related to the misconduct for the employee to be
accommodated versus disciplined; i.e. the misconduct was caused as
a result of the employee's addiction/dependence.
Monday,
January 15, 2007
An
employee with a disability must be accorded equal treatment despite
his/her condition, not superior treatment because of it.
Friday,
January 12, 2007
Arbitrators
differ on the extent to which accommodation is required when employee
misconduct, although linked to a disability, is otherwise culpable
or blameworthy conduct. In Castlegar & District Hospital Society (2000),
86 L.A.C.(4th) 81 (Larson), an Arbitrator reinstated an addicted nurse
caught stealing narcotics from the Hospital for a second time.
Thursday,
January 11, 2007
In
Re Provincial Health Authorities of Alberta, Arbitrator Moreau stated
that "fatigue" was not a sickness or disability, even if a medical
certificate had been produced by the employees. Simply being tired
because of a long shift the work day before, without any underlying
medical basis, would not qualify the employees for sick leave.
Wednesday,
January 10, 2007
While
most disabilities are beyond the employee's control, an impairment
may have a quasi-voluntary aspect to it, such as alcoholism, or drug
or nicotine addiction.
Tuesday,
January 09, 2007
An
employer imposing workplace rules or requirements that treat or affect
workers differently based on prohibited grounds of discrimination
may defend those rules if the employer can show that the rules are
adopted for a genuine purpose and are required for the performance
of the job.
Monday,
January 08, 2007
An
arbitrator has held that heavy smokers suffer from a disability and
must be accommodated: Cominco Ltd. v. United Steelworkers of America,
Local 9705, [2000] B.C.C.A.A.A. No. 62 (Larson).
Friday,
January 05, 2007
What
are the employer's obligations regarding the counselling of an employee
with a disability about attendance requirements? The law clearly requires
employers to counsel and warn employees that their level of absenteeism
is reaching a point where non-culpable dismissal is a possibility.
Thursday,
January 04, 2007
Arbitrators have dismissed grievances where employees seeking an accommodation
have requested the opportunity to bump more senior employees. Seniority
is considered a prized employee right, and only very clear collective
agreement language would generally permit an override.
Wednesday,
January 03, 2007
A Manitoba human rights adjudication dealt with a Mormon woman who
wanted to become an accounting clerk with The Steinbach Bible College.
She was hired, and then fired when her religious beliefs were disclosed.
The College admitted the discrimination, but took the position that
the termination was based on a bona fide and reasonable qualification
for the employment in accordance with the Code. The Adjudicator ultimately
found in favour of the College: Schroen, Steinbach Bible College and
Canadian College of Christian Charities, 1998 (Knight).
Tuesday,
January 02, 2007
Discrimination can occur quite innocently in situations where an employer
adopts a rule, a standard or a procedure, which although neutral on
its face and equally applicable to all employees, is nevertheless
discriminatory and reflects upon an individual or group of employees
because of some characteristic of that group such as its religion.
Monday,
January 01, 2007
A union may be liable for failure to accommodate the religious beliefs
of employees if the union impedes the reasonable efforts of the employer,
even if it did not participate in the formulation or application of
a discriminatory rule or practice.
Friday,
December 29, 2006
Employers who suspect that an individual is substance dependent but
do not institute accommodative measures, or employers who should reasonably
suspect substance dependence but fail to attempt accommodation measure,
may find their disciplinary measures quashed at arbitration.
Wednesday,
December 27, 2006
Last-chance agreements are generally considered to be valid and enforceable
against the parties, subject to human rights law. The main policy
reason for enforcing a last-chance agreement is that the agreement
arises out of a bargain between the employer, the employee and the
union. To disturb that bargain would discourage parties from settling
matters between themselves, and would increase the number of grievances
referred to arbitration.
Tuesday,
December 26, 2006
The Supreme Court of Canada has said that workplace standards, such
as lifting requirements or work schedules, that unintentionally distinguish
among employees on a protected human rights ground (i.e., disability,
gender, religion, etc.) may be struck down or modified. Employers
must build liberal conceptions of equality into workplace practices.
Monday,
December 25, 2006
The
direction of the current caselaw is that the employer is entitled
to request, and receive, an adequate diagnosis from the employee's
physician concerning his or her fitness. Otherwise, it is not in a
position to adequately assess the employee's accommodation needs.
Friday,
December 22, 2006
Employees
with a long-term disability present the most challenging accommodation
problems. But arbitrators in Canada have been clear that employers
are not required to provide an accommodation to an employee who cannot
perform the essential duties of an available position and whose disability
offers no foreseeable prospect of improvement.
Thursday,
December 21, 2006
The
Supreme Court of Canada has said that collective agreement provisions
are to be respected, but they may on occasion have to be waived if
they unreasonably block a viable accommodation option.
Wednesday,
December 20, 2006
The
Supreme Court of Canada has said that the primary responsibility for
accommodation rests with the employer, because it has the ultimate
control over the workplace. However, the union must co-operate with
the accommodation process, and not unreasonably block a viable accommodation
option.
Tuesday,
December 19, 2006
The
duty to accommodate is a legal obligation. It comes from two sources:
(i) the applicable human rights legislation; and (ii) rulings from
the Supreme Court of Canada.
Monday,
December 18, 2006
Once
an employee has established a prima facie case that s/he has a mental
or physical disability that requires accommodation, the burden then
shifts to the employer to prove that every reasonable effort was made
to accommodate the employee's disability.
Friday,
December 15, 2006
The
employer must accommodate up to the point of "undue hardship." While
there is no single definition in law of this term, the various decisions
on accommodation make it clear that this effort must be substantial.
Thursday,
December 14, 2006
Employers
and unions in Canada are required to make every reasonable effort,
short of undue hardship, to accommodate an employee who comes under
a protected ground of discrimination within human rights legislation.
In most cases, the protected ground requiring an accommodation is
a disability, although other protected grounds such as religion, gender,
race and family status must likewise be accommodated.
Wednesday,
December 13, 2006
The
employer's obligation to accommodate may include the provision of
training to the employee, provided that the costs of such training
would not amount to an undue hardship.
Tuesday,
December 12, 2006
In
Re Canada Safeway (2000), 89 L.A.C. (4th) 312 (Sims), the employer
had adopted a requirement that a cashier must be able to perform every
aspect of the job description as a pre-condition. An employee who
developed a repetitive strain injury and subsequently sought to return
to work after recuperation was required by her employer to pass tests
demonstrating that she could meet the full requirements of the cashier
position, without modifications. Arbitrator Sims ruled that the employer
gave insufficient thought to reconfiguring the job duties, such as
re-bundling the work, retraining the employee, introducing job aids
or searching for productive alternative duties.
Monday,
December 11, 2006
The
Supreme Court of Canada has stated that the reaction of employees
may be a factor in deciding whether accommodation measures would constitute
undue interference in the operation of the employer's business.
Thursday,
December 07, 2006
In
Re Canadian Pacific Ltd. (1996), 57 L.A.C. (4th) 129 (M. Picher),
the arbitrator ruled that an employee seeking an accommodation, in
circumstances where there were no available permanent positions, must
be prepared to accept retraining and offers of temporary work, or
risk exhausting the opportunity to be accommodated.
Wednesday,
December 06, 2006
The
goal of the duty to accommodate in the employment relationship is
to attempt to achieve fairness in the workplace and avoid even unintentional
discrimination on prohibited grounds. Although some might dispute
the assertion, the concept has been effective in pulling employers
in that direction in only a few short years. However, some employers
would respond that this has been achieved by creating a regime where
their obligations are ill-defined and ever changing.
Tuesday,
December 05, 2006
In
Government of the Province of British Columbia, [2000] BCCAAA No.
164 (Lanyon, Q.C.), a liquor store manager was terminated for theft
of alcohol. The union argued that the grievor's misconduct was the
result of this alcoholism and therefore non-culpable. The Arbitrator
disagreed. He found that, although the grievor's conduct was linked
to addiction, the grievor was nonetheless aware that his conduct was
wrong. The Arbitrator decided that the conduct should be considered
within a "culpatory framework" with the effect of addiction treated
as a "mitigating" not "exculpatory" factor. The Arbitrator decided
that the mitigating factor of alcoholism did not overcome the serious,
culpable misconduct at issue and dismissed the Union's grievance.
The LRB upheld the award at BCLRB No. B479/2000.
Monday,
December 04, 2006
The
duty to accommodate requires more from the employer than simply investigating
whether any existing job might be suitable for a disabled employee.
Rather, the law requires an employer to determine whether existing
positions can be adjusted, adapted or modified for the employee, or
whether there are other positions in the workplace that might be suitable
for the employee.
Friday,
December 01, 2006
You
will not find the phrase "duty to accommodate" in Canadian human rights
legislation. That obligation nonetheless exists due to a series of
Supreme Court of Canada decisions confirming that Canadian employers
cannot defend against complaints of discrimination until they have
shown that they cannot accommodate the needs of the affected person
without causing undue hardship.
Thursday,
November 30, 2006
All
employers, whether provincially or federally regulated, are subject
to the duty to accommodate which flows from applicable human rights
legislation.
Wednesday,
November 29, 2006
Where an employer claims that accommodating a disabled employee poses
an undue hardship due to safety concerns, it must identify each potential
safety hazard and provide convincing evidence that the safety concerns
outweigh the obligations owed to the disabled employee.
Tuesday,
November 28, 2006
If
there is a connection between an employee's misconduct and his/her
disability, the employer is required to provide accommodation to the
point of undue hardship rather than discipline.
