Duty to Accommodate

 

The Human Rights Act

• The purpose of the Human Rights Act is to give effect ... to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices ...
• Canadian human rights legislation recognizes that true equality means respect for people’s different needs and requirements. 
• In employment, this means valuing and accommodating differences so that all employees can work to the best of their ability.

Discrimination

According to the Human Rights Act, “discrimination” means making a distinction between certain individuals or groups based on a prohibited ground of discrimination. 

There are a number of provisions in the Act that set out what acts amount to discrimination in the workplace.  The two which are of primary importance to PIPSC stewards are:

Provision 1

(7) It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.

Provision 2

(10) It is a discriminatory practice for an employer, 

(a) employee organization or employer organization

(b) to establish or pursue a policy or practice, or

to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.

Prohibited Grounds

Under the Canadian Human Rights Act, section (2), it is against the law for any employer or provider of a service that falls within federal jurisdiction to discriminate on the basis of:

• race
• national or ethnic origin
• colour
• religion
• age
• sex
• sexual orientation
• marital status
• family status
• disability 
• conviction for an offence for which a pardon has been granted

Disability

Section 25 of the Human Rights Act defines disability as being either:

• physical or mental; 
• previous or existing; and 
• including dependence on alcohol or a drug. 
• A disability can be either permanent (e.g., a visual or mobility impairment), or temporary (e.g., a treatable illness or temporary impairment which is the result of an accident). In determining whether a temporary illness would be considered a disability .... you must consider the extent to which the illness/injury has on a person’s ability to do their job or obtain service, not only the nature of the illness itself.

! Can you think of some examples where an injury/illness could be considered a short-term disability?

Understanding Disabilities

The following may be considered disabilities, this is not an exhaustive   list. 

• visual and hearing impairment
• mobility issues
• chronic pain and conditions
• environmental sensitivities
• learning or intellectual disabilities
• mental health or psychological conditions
• addictions
• other permanent  or temporary conditions

Group Poll!

! By a show of hands, how many of you think that the duty to accommodate overrides collective agreement provisions?

Facilitator Notes 

For those people who indicate that they do not think that the DTA overrides CA provisions – ask them to explain? Do the same with those people who indicated that yes, the DTA overrides the CA. 

Accommodation & Collective Agreements

Yes! Accommodation that is founded on human rights legislation i.e. the duty to accommodate is based on a prohibited ground under the Human Rights Act, this trumps the collective agreement. 

Case #3 Renaud (Okanagan School Board and CUPE local 523)

• Issue: Is there a duty to accommodate when both the collective agreement and the employer require someone to work a shift  from 3:00 p.m. – 11:00 p.m. on a Friday which conflicts with someone’s religious beliefs which forbid them from working sundown on Friday to sundown on Saturday?

Duty to Accommodate: Key Considerations

What is Accommodation?

Accommodation is defined as “an adjustment or adaptation to suit a special or different purpose.”

Accommodation refers to the design and adaptation of the work environment to the needs of as many types of persons as possible and, according to the Supreme of Canada, refers to what is required in the circumstances of each case to avoid discrimination.  Source: Treasury Board Policy on the Duty to Persons with Disabilities in the Federal sector.

Examples of Accommodation

Examples of accommodation in the workplace include making the following changes:

• duties and tasks   
• physical demands
• equipment (tools, clothing)
• workspace/workstation and equipment
• hours or days of work
• location of work
• (re)distribution of duties 
• breaks, work schedule 
• workload

Perfect or Reasonable?

• Is there a distinction between reasonable solutions and perfect solutions with respect to the duty to accommodate? 
• The duty to accommodate speaks to reasonable accommodation. In other words an employer may meet their duty to accommodate with a solution that may be not be viewed as a perfect solution. 
• Reasonable is defined as: fair, proper, suitable and appropriate, rational.

Bona Fide Operational Requirements Key Court Decisions

1999 – Supreme Court of Canada Cases:

Case #1:Tawney Meiorin
Issue: Was it reasonable given the job that a firefighter run 2.4 km in 11 minutes?  
What was this case really about? Gender discrimination at a workplace particularly in traditionally male-dominated fields. 
This case resulted in the “three-step Meiorin Test” to determine if the employer has established a standard that is now termed a bona fide occupational requirement (BFOR).

Case #2 – Terry Grismer 
Issue: Driver’s license cancelled after medical condition resulted in the loss of peripheral vision in left eye. To accommodate this, Grismer developed a system of mirrors to compensate for this loss but was prevented from taking an individual assessment and demonstrate that he could drive safely
What was this case really about? Service discrimination to a person with a disability. 
Outcome: Meiorin Test was applied and court found that Grismer was discriminated against because he was not allowed to take the driver’s test using his mirrors in order to demonstrate that he could in fact drive safely.

Impact of the Cases 

• As a result of these cases there is a workplace duty to accommodate that eliminates employment standards, rules, practices or other requirements that discriminate on prohibited grounds. 
• Human rights legislation has a quasi-constitutional place in Canadian law, and all other statutes, policies and practices must normally not be inconsistent with it.

Employer Obligation
Bona Fide Occupational Requirement (BFOR)

Employer must: 

• demonstrate that it adopted the standard for a purpose that is rationally connected to the performance of the job
• establish that it adopted the standard in an honest and good-faith belief that it was necessary in order to fulfill that legitimate work-related purpose
• establish that the standard is reasonably necessary to accomplish its work-related purpose and that it is impossible to accommodate the employee without undue hardship. 

Three step test for BFOR as defined by SCC in Meiorin

What Constitutes Undue Hardship? 

According to the Canadian Human Rights Commission, “undue hardship” refers to the limit of an employer’s capacity to accommodate without experiencing an unreasonable amount of difficulty. Employers are obligated to provide accommodation up to the point of undue hardship.

Undue Hardship can be understood as, unreasonable difficulties for the employer for example:

• If doing so would compromise safety or health
• If doing so would have severe financial (productions) considerations 
• Note! Employers are required to review all options before they revert to a defence of undue hardship.

Facilitator Notes
What is undue hardship?

The term "undue hardship" refers to the limit of an employer's capacity to accommodate without experiencing an unreasonable amount of difficulty. Employers are obligated to provide accommodation "up to the point of undue hardship." This means an employer is not expected to provide accommodation if doing so would bring about unreasonable difficulties based on health, safety, and/or financial considerations. 
 
There is no precise legal definition of undue hardship, nor is there a standard formula for determining undue hardship. Each situation is unique and should be evaluated individually. Undue hardship usually occurs when an employer cannot sustain the economic or efficiency costs of the accommodation. 
 
Generally, some hardship can be expected in meeting the duty to accommodate. Employers are required to carefully review all options before they decide that accommodation would cause undue hardship. It is not enough to claim undue hardship based on an assumption or an opinion. To prove undue hardship, employers have to provide evidence.
 
About costs: “To be considered undue hardship, financial costs must be so great as to alter the essential nature of the enterprise or affect its viability. In practice most workplace accommodations are not very expensive. The Ontario Human Rights Commission says: ‘Over two-thirds of job accommodations cost under $500; many cost nothing at all.’ ” (Hatfield, p. 25)

BFOR Defense

In order to establish a BFOR defense, employers must show with convincing proof what has been done to accommodate those affected short of undue hardship, considering health, safety and cost.

A Few Words on Recourse

2 main recourse mechanisms

• Complaint under the CHRA 
• Grievance under the CA

• Best advice always talk to your ERO and together explore the best options for the member. Accommodation is a complex issue to navigate and highly specialized!

Responsibilities: Union, Employer & Individual

Employer Responsibilities

• design workplace requirements and standards that are not discriminatory 
• identify and remove workplace discrimination and barriers in policies, practices, standards and procedures, ensure     managers and supervisors are aware and understand their obligations to accommodate
• demonstrate willingness to accommodate
• review and follow up and assess accommodation of workers on an on-going basis

Employee/Worker Responsibilities

• To identify and communicate the need for accommodation if possible
• To inform the employer of changes to the accommodation  needs
• To collaborate with the employer and the union to find the most appropriate accommodation
• Communicate with the Union and the employer
• To offer reasonable explanation for refusal to accept the proposed accommodation, 
• To supply job relevant medical information, non diagnostic information only such as functional limitations and residual capabilities
• Workers are not entitled to perfect accommodation. If employer proposes a reasonable accommodation then  employer has discharged its obligation

Union Responsibilities

• Providing its own educational resources
• Ensuring training provided to union activists
• Balancing the need of individual work and interests of the bargaining unit members as a whole
• To insist employer fulfills its duty
• Represent needs of the worker
• Respond to employer accommodation proposals
• Ensure the CA does not discriminate

Facilitator Notes

Does the union have a duty to accommodate?
The employer is primarily responsible for accommodation in the workplace but the union may be called upon to share this responsibility.  If the union fails to correct a collective agreement containing discriminatory clauses, it will become liable for the effects of the discrimination.

As we saw earlier in Renaud, the supreme court of Canada clarified that, like an employer, a union cannot rely upon a collective agreement provision to escape its accommodation responsibilities.  However, like an employer, a union can refuse a proposed accommodation if it would result in undue hardship to other members of the bargaining unit.
The Renaud decision state that a union can breach its accommodation duty in only two ways:
By signing a collective agreement that contains a discriminatory provision (even if it opposed the provision at the bargaining table) and;
 
By standing in the way of a reasonable accommodation proposal.  
By ensuring that discriminatory clauses are eliminated from collective agreements, unions play an important role in defending and promoting human rights in the workplace.  They are also sending a clear message to the employer that they consider such matters to be extremely important.
 
Furthermore, the collective agreement - which is closer and more accessible to workers than legislative enactments - is an educational tool for our members. Workers are more familiar with the collective agreement which is easier to put in practice.  Another aspect:  if a right is entrenched in the collective agreement, it is more difficult for management (or work colleagues) to attempt to scapegoat those who claim it.

Stewards’ Role

• Stewards may act as a liaison
• Stewards are critical for assisting EROS to explore options for suitable accommodation 
• Stewards are the eyes and ears of PIPSC in the workplace.  You know the workplace, duties and challenges
• Stewards can work with EROs on possible accommodations such as  bundling of duties
• Stewards are an integral aspect of return to work plans as well as follow-up after the accommodation is implemented to assess:
  • whether it is working and 
  • to help address any associated issues that may surface
• Stewards may have to deal with perceptions of other members in the workplace that the member being accommodated is  “getting a cushy job”, a slacker and so forth.

Facilitator Notes

In addition, stewards with EROs can play a key role in moving accommodation issues forward, defending their members’ interests and rights, and holding the employer accountable. It is important to emphasize that these are complicated areas to work in and that nothing should be done without the involvement and guidance from an ERO and that while stewards can play an instrumental role, they must do so under the advice of an ERO. 

Some examples include:

A role related especially to issues respecting people with disabilities but could also be related to religious, family, pregnancy or other issues
Negotiating return to work arrangements (after disability leave)
Negotiating “exceptions” to common rules or practice on behalf of people who require accommodation
Intervening in disability insurance matters
Intervening in work-related injury claims

Return to Work: What Happens Next?

The following options may be considered as part of a return to work:

• Work Hardening
  Work hardening is essentially a specialized program designed to enable people with physical, psychological, and psychosocial issues inhibiting a person’s ability, to successfully return to work. Work hardening typically focuses on cognitive skills and is designed to gradually improve and strengthen skills and competencies in order to help someone return to work. 
• Return to Work Plans  and/or Pre-Return to work meetings to assess what is required in terms of accommodation
• There will be situations when it is hard to determine ahead of the return work what accommodation measures will be needed – these measures may have to be identified gradually as the employee reintegrates back into the workplace.

Facilitator Notes

NOTE: As part of this section, you will hand out the Samples of Return to Work Plans and go through them with the participants highlighting things you feel are important for them to know,  such as how progress will be tracked, what mechanisms are in place to evaluate the RTW plan to see if it is supporting the member effectively and what if any information is missing that stewards need to be aware of. Group Activity Option: You could hand them out to the groups and ask them to review the RTW plans and see if in their view is anything missing and if so, what would they add?

NOTE:  Depending on the timing, at this point you might start with the panel discussion or do it after this slide. The objective of this panel discussion is to create a space for stewards who have had experiences with return to work and/or accommodation to share their experiences with participants.