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The Duty To Accommodate

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HRPA York Region Chapter
January 16, 2020

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The Duty To Accommodate

  1. 1. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 HRPA York Region Chapter January 16, 2020 The Duty to Accommodate Stuart Rudner stuart@rudnerlaw.ca 416.864.8501 Presented by:
  2. 2. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Disclaimer The user is authorized to use this presentation for the user’s own needs only, and is not authorized to make copies thereof for sale or for use by others. This presentation is not provided for the purpose of providing legal advice. Every situation is unique and involves specific legal issues. If you would like legal advice with respect to the topics discussed in this presentation, or any Employment Law matter, we would be pleased to assist you. 2
  3. 3. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 ● What is Accommodation? ● What types of things do you have to accommodate? ● What triggers the duty to accommodate? ● How far do you have to go? ● What if you get it wrong? 3
  4. 4. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Overview 1.The Duty to Accommodate Explained 2.Limits: Bona Fide Occupational Requirements and Undue Hardship 3.Responding to Requests for Accommodation 4
  5. 5. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Human Rights Laws ● To allow those that can work to do so ● Not pay people not to work, or create jobs that don’t exist ● Eliminate barriers a. physical b. psychological c. attitudinal ● Protect traditionally disadvantaged groups 5
  6. 6. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Protected Grounds in Employment (Ontario) ● Race ● Ancestry ● Colour ● Place of origin ● Ethnic origin ● Citizenship ● Creed ● Sex 6 ● Sexual orientation ● Gender identity ● Gender expression ● Age ● Record of offences ● Marital status ● Family status ● Disability
  7. 7. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 What is Unlawful Discrimination? “Adverse treatment of a person on the basis of a prohibited ground” Direct and Indirect discrimination “No disabled applicants” vs All offices on second floor, no elevator *not all “discrimination” is unlawful 7
  8. 8. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 8 The Duty to Accommodate
  9. 9. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Accommodation Sometimes people need individual arrangements so they can do their jobs, access services and buildings, and enjoy housing equally – this is called accommodation Failure to accommodate = barrier to employment = Discrimination unless exception applies 9
  10. 10. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 The Duty to Accommodate The law expects: ● real effort to accommodate the need/request; and ● some hardship 10
  11. 11. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 What can accommodation look like? *no requirement to create job or to maintain compensation level 11 Tolerating Absences Modified or shuffled duties Modified Working Conditions Modified Hours Telecommuting/changing location provision of assistive equipment Reassignment to new role Leave of absence
  12. 12. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 12 Bona Fide Occupational Requirements and Undue Hardship Limits on the Duty to Accommodate
  13. 13. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bona Fide Occupational Requirement (BFOR) ● A skill, requirement or rule essential to the performance of the job ● If a barrier = a BFOR, the employer may not be required to accommodate ○High standard 13
  14. 14. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Plaintiff must establish prima facie discriminatory conduct Onus then shifts to employer to show: ●Standard was rationally connected to job performance ●Honest and good faith belief of its necessity ●Reasonable and necessary for legitimate purpose ● was there way to achieve purpose with less impact on human rights? ● often overlaps with undue hardship analysis If employer fails to establish these three criteria, conduct is discriminatory The Meiorin Test 14
  15. 15. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 BFOR? ● Staff in a men’s locker room at the gym must be men? ● Interpreter for hearing impaired must have good hearing? Others? 15
  16. 16. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Limit: Undue Hardship ● Duty to accommodate is not unlimited ● Not to point of impossibility ● Limit: undue hardship* ● High standard to meet *check your policy wording 16
  17. 17. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 17 Discuss You have an employee that had a stroke and now requires a wheelchair. He works on the second floor. Would having to install an elevator or ramp constitute undue hardship? ➢IT DEPENDS
  18. 18. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 What is Undue Hardship? ● Severe negative effects must outweigh benefit of accommodation ● Consider: ○Financial Costs ○Health and safety risks ○Impact on operation of workplace ○Anything else that is relevant ● Breach of collective agreement is not undue hardship ● Neither is customer preference 18
  19. 19. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 19 Assessing Cost as Undue Hardship Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concerns that certain adverse consequences "might" or "could" result if the claimant is accommodated. Must be: ❏Quantifiable ❏Directly related to accommodation ❏So substantial it would alter essential nature/viability of enterprise
  20. 20. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Responding to Accommodation Requests 2 0
  21. 21. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Process of Accommodation Procedural Duty: Take all reasonable steps to obtain required info to assess disability & availability of accommodations Trigger: Request or obvious indicators of need (duty to inquire) ● NEVER dismiss requests for accommodation out of hand ● Have standardized process for assessment ● Obtain info re how disability affects job performance & appropriate accommodations ○Request (medical) documentation ● Work with employee to understand how ground intersects with job duties 21
  22. 22. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Accommodation: A Joint Process ● Employees must participate in accommodation process ● Cannot request accommodation & refuse ● Cannot rely on privacy rights to refuse to disclose info that is necessary for employer to assess need and options ● Otherwise claim will fail ● Privacy vs accommodation: can’t have it both ways BUT 22
  23. 23. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 What Can You Ask For? Limitations on ability to carry out job functions Then: ● Assess need for accommodation ● Assess accommodation options ● Evaluate costs/implications ● Implement if required Remember purpose: prevent barriers for people that can work 23
  24. 24. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Reasonable Accommodation is Requirement ● Fretz v. BDO Canada LLP: Employee is not entitled to their preferred form of accommodation ○Hearing impaired interviewee wanted interpreter ○Respondent provided keyboards and computer screens to communicate ○HRTO: This was NOT failure to accommodate Employee must accept reasonable proposals for accommodation and participate in reasonable accommodation schemes. 24
  25. 25. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Don’t ●Assume privacy law means you can’t ask for more detail ●Request specific diagnosis ●Request information irrelevant to job duties ●Request entire medical file (of the employee or family) ●Make assumptions or judgements ●Turn “a blind eye” or be wilfully blind ○ remember duty to inquire 25
  26. 26. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 26 You have a long-serving salesperson that had consistent performance and sales for 17 years, but in 2019, his sales dropped by 60% and his work product was sub-par. Quotes were late, clients complained of missed meetings, and he was often “MIA”. You sit down to discuss the performance concerns, and he breaks down, telling you that his wife left him, he can’t sleep or eat, and he can’t focus on his work. At the suggestion of a friend, he recently started seeing a therapist who thinks he is likely suffering from depression, though there is no official diagnosis yet. What do you do? Case Study
  27. 27. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Accommodating Addictions 27 ●Addiction = Disability ●Duty to accommodate applies ●Alcohol & drugs = clear duty if addiction ●What about gambling, sex? ●Note Competing duties: ○reasonable precaution to protect workers vs ○duty to accommodate
  28. 28. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Cannabis: Different Types of Users Entitled to Accommodation? ●Casual/Recreational: No ●Addicts: Yes ●Prescription Users Yes ●Self-Medicators It Depends 28
  29. 29. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Smokers not Welcome? 29
  30. 30. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 30 Any Questions?
  31. 31. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 THANK YOU! Feel free to contact us if we can be of assistance. We’d be glad to speak with you. 416.864.8500 905.209.6999 www.rudnerlaw.ca info@rudnerlaw.ca 100 Allstate Parkway Suite 600 Markham, ON L3R 6H3 31 ➢Follow our blog at rudnerlaw.ca/blog ➢Check us out on LinkedIn, FaceBook, and Instagram ➢Tune in to Fire Away, our monthly online show ➢View our videos on our YouTube channel ➢Listen to our podcasts ➢To receive regular Employment Law updates and keep on top of what we are up to, sign up for our newsletter at rudnerlaw.ca/newsletters

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