Presented by Melanie Polowin, Partner, Gowlings www.gowlings.com

1. Employment and Labour Law
SEMINARS | 2015

2. Two Steps Forward, One Step Back:
Disability Accommodation
In the Workplace
Presented By: Melanie Polowin
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3. 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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4. 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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5. 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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6. • 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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7. • 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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8. STOP!
Rushing to the finish line is a fatal error!
D. Don’t play doctor, do play defence
R. Request up to date medical information/clarification
O. Options – canvas, identify, consider, assess, prioritize, test
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9. 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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10. 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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11. 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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12. 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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13. 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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14. 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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15. 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

16. 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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17. • 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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18. 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!
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19. • 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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20. 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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21. • 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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22. • 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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23. (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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24. (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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25. 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
25

26. • 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?

27. 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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28. (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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29. (
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
29

30. 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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31. 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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32. 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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33. 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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34. Thank You
Montréal  Ottawa  Toronto  Hamilton  Waterloo Region  Calgary  Vancouver  Beijing Moscow  London
Melanie Polowin
Partner, Ottawa
Melanie.polowin@gowlings.com