Transcript Slide 1

KEY ISSUES IN HUMAN RIGHTS
“Duty to Accommodate – Basics”
Presented by:
Marino J. Sveinson
James D. Kondopulos
June 23, 2008
HEABC 15th ANNUAL CONFERENCE
Leading & Succeeding: Keeping Pace with the Changing Healthcare
Workforce
The purpose of this presentation is to provide information as to developments in and the state of the law.
This presentation does not, in spite of efforts to provide a full and accurate analysis of the law, constitute a legal opinion.
© Jennifer Perry, Marino J. Sveinson and James D. Kondopulos
British Columbia (Public Service
Employee Relations Commission) v.
BCGSEU (Meiorin)

B.C. government established
minimum physical fitness standards
– including an aerobic standard –
for its forest firefighters

Meiorin – a female fightfighter –
failed to meet the aerobic standard,
and was dismissed
Meiorin
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Most women, owing to
physiological differences, have
lower aerobic capacities than men
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No evidence that the aerobic
standard was necessary for
satisfactory performance of work
Three-Step Test

Standard was adopted for a purpose
rationally connected to the performance
of a job

Standard was adopted in an honest and
good faith belief that it was necessary to
the fulfilment of that legitimate workrelated purpose

Standard is reasonably necessary to the
accomplishment of that work-related
purpose
BFOR

To determine whether a prima
facie discriminatory standard
is, to use the language of the
Code, a bona fide occupational
requirement
Benchmarks

Health care – setting standards may be found
in benchmarks e.g. Care Aide
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Provides personal care to patients (assisting
the patient with bathing, dressing and care of
skin and hair); changes bed; assists with toilet
needs; and oversees patient exercise routines
Transports patients utilizing mechanical aids
such as wheelchairs and/or stretchers
To Show that the Standard is
“Reasonably Necessary”

Employer has to demonstrate that “it is
impossible to accommodate individual
employees sharing the characteristics
of the claimant without imposing undue
hardship upon the employer”
Duty to Accommodate

Accommodation involves differential,
highly individualized treatment

Each case demands a subjective,
fact-based assessment
Requires an Employer to:
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Learn about and carefully consider the
capabilities and/or limitations of an individual
employee (or class of employees)

Thoroughly review the workplace and
workplace standards to discern what
modifications might be made to permit an
individual employee (or class of employees)
to work productively in the employer’s
operation
Clear and Cogent Evidence of
Undue Hardship is Required

Generally not sufficient for an
employer to provide anecdotal or
impressionistic evidence regarding
undue hardship
Assessing Undue Hardship
The appraisal of undue hardship may
consider the following non-exhaustive list of
factors:
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financial cost
safety concerns
disruption of a collective agreement
morale problems of other employees
interchangeability of the workforce and
facilities
size of the employer’s operation
The Players

Discrimination in the workplace has been
defined as “everybody’s business” and the
search for accommodation is “a multi-party
inquiry” requiring involvement of the
employer, employee, union and co-workers
Union’s Duty
Union’s duty to accommodate arises where
the union is party to the discrimination:

caused or contributed to the
discrimination by participating in the
formulation of the standard

impeded reasonable efforts of the
employer to accommodate
Impact on Co-Workers
Primary concern of a union regarding the
impact of a proposed accommodation:

the degree to which the proposed
accommodation would adversely impact the
rights of other employees and the collective
agreement
Duties of Employee
Also a duty on the employee seeking
accommodation to assist in searching for
an appropriate accommodation:
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by seeking an accommodation from an
employer
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duty to facilitate the implementation of a
reasonable accommodation proposal
Duties of Employee

Providing sufficient medical information
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Duty to accept reasonable
accommodation – cannot expect a perfect
solution
Duties of Employer
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Duty to investigate a suspected disability
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Unexplained performance issues
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Erratic behaviour
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Cannot ignore observations that human
beings are equipped to perceive
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Information received from someone other
than the employee
Duties of Employer
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Duty to obtain details necessary to
search for accommodation
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Seek medical information about nature
of disability and restrictions

Signs or symptoms of relapse?
Order of Search

Employee’s position
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Other positions
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Other worksites
Non-Exhaustive Catalogue of
Accommodation Efforts
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Altering the physical layout and/or setup of
the workplace
Providing adaptive equipment or technology
Altering work schedules
Providing part-time work as an alternative to
full-time work
Altering, removing, substituting and switching
job duties
Engineering changes
Accommodation Efforts
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Providing a training or trial period to permit
the employee to take on duties he or she is
capable of performing
Permitting a certain degree of absenteeism
Increasing the number of permitted sick
days
Allowing leaves of absence
Obtaining temporary replacements to
accommodate frequent or extended periods
of absence
Allowing compressed work schedules
Accommodation Efforts
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Bundling duties to create a
position?
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Must be a productive position
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Bumping an incumbent?
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Collective agreement provisions
related to seniority, job postings,
promotions?
If Offer of Accommodation
is Refused
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Employee not entitled to “perfect”
accommodation
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Employer may offer one of several
options; employee not entitled to
preference as long as reasonable
accommodation
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Onus on employee or the union to
explain or justify reason for refusal
Procedural Considerations

Numerous cases highlight important
procedural aspects of the accommodation
exercise

Employer’s decision that accommodation
is impossible short of undue hardship may
be correct BUT …

Employee may still receive damages if
proper process not followed
Gordy v. Oak Bay Marine
Management Ltd., 2004 BCHRT 225

Detailed roadmap of how an employer
must analyze its duty to accommodate
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Must apply a process of thought and
analysis AT THE TIME THE DECISION IS
MADE in order to PROVE that
accommodation is impossible
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Onus is on the employer to prove inability
to accommodate as part of BFOR defence
Gordy
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Employer’s duty to accommodate the returnto-work of a seasonal remote waters guide
who suffered from bi-polar disorder
Last decision in a string of decisions:
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2000 BCHRT 16: Employee’s complaint upheld
[2000] B.C.J. No. 2504 (S.C.): Employer’s judicial review
petition upheld and complaint set aside
2002 BCCA 495: Court of Appeal remits case to the
Tribunal
2004 BCHRT 225: Employee’s complaint upheld with 241
paragraphs of reasons!
Gordy

Employer ignored optimism of employee’s doctor, based on
Gordy's previous failed attempt to return to work and its
“impression” of risk

Tribunal concluded that the employer conducted none of the
analysis required to prove that it was right

Adjudicators will ask:
 Did you investigate alternative approaches that do not
have a discriminatory effect (at the time of your decision)?
 Did you correctly decide whether there was a way to meet
your objectives in a way that is less discriminatory (at the
time of your decision)?
 What process did you use to analyze the issue and reach
conclusions (at the time of your decision)?
Gordy
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You must design a PROCESS under which
you will INVESTIGATE accommodation
options and JUSTIFY your decision to accept
or reject the options
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You must be able to point to each aspect of
the process in evidence to prove that you
discharged your duty to accommodate
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Obtain wherever possible detailed EXPERT
evidence or advice about your options
Gordy
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Employers often need:
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detailed MEDICAL information about the specific limitations
on the employee’s ability to perform work, including
limitations on physical and cognitive abilities
general MEDICAL information about the disease at issue
Consider “all” possible modifications to the job duties
or work, including:
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modifications to employee’s own job duties
scheduling changes
reconfiguring work – i.e. is there a job or work the employee
can perform productively in the workplace?
reassigning the employee
Gordy
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Analyze undue hardship in the context of your
enterprise:
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size
scheduling pressures
customer or public relations
profitability
nature of operations
regulatory and legal framework
your existing experience with the employee in
question or similar accommodation challenges in
the past – i.e. what do you already know?
Some Advice for Employers
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Build an understanding and gather
information
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Make detailed inquiries and investigations
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Communicate openly, honestly, directly,
compassionately and amicably
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Remember the search for accommodation
is a multi-party inquiry
Advice for Employers
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Remember employers have the right to operate
productively, efficiently and profitably
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Gather clear and cogent evidence of undue
hardship that would be experienced
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Gather expert evidence on excessive financial
cost associated with accommodation
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Consider risks to the safety of the employee, to
fellow employees and to the public
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Document the entire process
Duty to Accommodate –
Some Specific Issues
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Mental Illness
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Addicted Employees
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Disabled Employees
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Getting medical information
Dealing with “fakers”
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Family Status
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Defining the “Duty to Accommodate”
Accommodating Mental Illness
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“Mental illness” includes a broad range of psychiatric
disorders including:
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depression
bipolar disorder
schizophrenia
P.T.S.D.
panic and anxiety attacks caused by work-related stress
migraines
kleptomania
low IQ

May be more difficult to identify and determine
appropriate accommodation

Balancing duty to accommodate with patient safety
Shuswap Lake General Hospital v.
BCNU (Lockie Grievance),
[2002] B.C.C.A.A.A. No. 21 (Gordon)

Grievor hired as RN in 1994 and
diagnosed with bi-polar effective disorder
in 1997

Disorder caused episodes of mania where
mood swings occurred and resulted in
emotional breakdown
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Grievor took time off to recover and
received medical treatment
Shuswap
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In 1999, the grievor made three serious
medical errors

Grievor went off on sick leave and was fit to
return to work in early 2000

In April 2000, the grievor had another
breakdown triggered by the condition of one
of her patients

Employer sought assurance from physician
that grievor “could meet her standards of
practice on a consistent basis”
Shuswap

Grievor’s physician explained that due to
the nature of bi-polar disorder it was
impossible to predict future relapses
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Employer determined it could not
accommodate the grievor without undue
hardship and terminated her
employment
Shuswap
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At arbitration, the grievor was reinstated on
the following conditions:
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Regularly attend her treating physicians and
report all signs of relapse to them
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Comply with medical caregivers’ testing,
monitoring, treatment and medication
recommendations
Shuswap
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Staff advised of nature of her disorder and
signs of relapse
Work schedule to be predictable – no nights
and no excessive overtime
Husband and physician authorized to report
signs of relapse to manager
Managers and supervisors to monitor her
condition
Prepare report of indicators of relapse and
provide to manager
Shuswap
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Schedule predictable routine shifts
Educational workshop for staff
Facilitated discussion of co-workers
concerns
Procedure to report deterioration or
relapse
Tolerate absences
Reporting mechanism to monitor grievor’s
condition
Accommodating Addiction
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Addictions are diseases that must be
accommodated to the point of undue
hardship
Negative behaviour caused by addiction
(absenteeism) must be treated non-culpably
Negative behaviour unrelated to addiction
(fight) may be treated with discipline
Fraser Lake Sawmills sets out the analysis
applicable to “hybrid” situations where the
causal connection is unclear
Accommodating Addiction
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Employers may be required to
accommodate addicted employees by:
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adjusting shifts to enable rehabilitation
providing leaves of absence
arranging for counselling or rehabilitation
repeatedly offering support
tolerating absenteeism
providing workplace education to manage
morale
paying for reinstatement and monitoring
altering duties or reassigning worker
tolerating relapse
Health Employers Assn. of British
Columbia v. British Columbia Nurses’
Union, [2006] B.C.J. No. 262 (C.A.)
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Grievor was an addicted nurse
He had previously worked at another hospital from which
he had twice been fired for addiction-related behaviour
After each termination, he had been reinstated on a last
chance agreement
Grievor’s employment was terminated by his new
employer
Grievor claimed that the employer had failed to
accommodate him
Arbitrator held that the employer failed to accommodate
the grievor – it should have explored the possibility of
finding him a job that did not provide access to drugs
Termination was overturned
Health Employers Assn. of British
Columbia

Employer appealed to the B.C. Court of
Appeal

Fraser Lake Sawmills analysis was applied:
“Where the addiction [is] found to have no causal link to
the misconduct, the misconduct should be treated as
culpable, and therefore appropriate to a ‘just cause for
dismissal’ analysis in the labour law context. Where the
addiction [is] the sole cause of the misconduct, it [is] to be
regarded as non-culpable, and therefore subject to the
discrimination accommodation analysis in the human
rights context. But where the addiction and voluntary
behaviour [are] joint causes of the misconduct it [is] to be
treated as a hybrid case.”
Health Employers Assn. of British
Columbia

Court of Appeal held that “accommodation must be approached
with basic notions of balance, flexibility and common sense” and
noted that nurses are employed in positions where public safety
is of the utmost importance

Court of Appeal held that the arbitrator erred in failing to
consider:
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grievor’s duty to facilitate the accommodation
grievor had twice been returned to work and then relapsed
grievor had repeatedly failed to cope with his addiction or take
responsibility for his rehabilitation
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Court of Appeal held that the employer had not breached its duty
to accommodate the grievor
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Termination decision was restored
Substantiating Disability

Employers are entitled to medical information
so that they can assess the legitimacy of a
leave, administer benefits and consider
accommodation
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“Worker off sick” notes are common but
unacceptable

Employer’s right to information is balanced
by privacy considerations
Medical Notes
This is to advise that the patient has
chronic back problems.
I recommend that she work only day shifts.
Dr. Smith
Employer’s Rights

Employer are entitled to question medical
notes and seek clarifications or additional
information, with some limits
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Onus is on the employee to provide sufficient
medical information to justify her entitlement
to leave, accommodation etc.

Request for medical information cannot be
inconsistent with the collective agreement
and must be “reasonable”
Reasonable Requests
Employers may request:
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nature of illness or injury
employee’s expected return-to-work
possible limitations on duties or hours of work
whether the employee is following a treatment plan
• employers may make other case-specific inquiries
to establish entitlement to sick leave and the
employer’s ability to accommodate an employee upon
return to work
Reasonable Limits
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Employers are generally not entitled to:
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specific diagnosis
know the kind of treatment the employee is
receiving
require an independent medical examination
know whether there are non-medical barriers to
the recovery
secure reports from the employee’s doctor or
access the employee’s medical records
contact the employee’s physician directly
Two Cautionary Points

Privacy legislation generally precludes
employers from disclosing medical
information to third parties without
employee consent
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Workers Compensation Act prevents
employers from using WCB information
for other purposes without an order of a
decision-maker
Dealing with “Fakers”
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Sometimes, employers doubt the legitimacy
of an employee’s medical leave
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Be careful before asserting benefits fraud
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Must provide “clear, cogent and convincing”
evidence that the employee deliberately
attempted to improperly obtain benefits
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Employers who fall short of that high mark
are exposed to additional liability
Re Teck Cominco Metals Ltd. and
USWA, Loc. 480 (2005), 141 L.A.C. (4th) 97
(Sullivan)
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28-year employee requested family responsibility
leave but failed to justify the leave – the request was
refused
Employee left work mid-shift, claiming “stress”
At an investigation meeting, the employer learned that
the employee had taken his wife to a U.S. casino
Employment was terminated
Employee produced a doctor’s note saying he was on
sick leave for depression; employee’s doctor also
claimed that the employee was “totally incapacitated”
Re Teck Cominco Metals Ltd.
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Termination was upheld
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Arbitrator concluded that:
 Grievor did not have any disability
 Long service was outweighed by his:
• serious misconduct
• manipulation of the doctor
• attempts to mislead the arbitrator
• lack of remorse
• calculated attempt to perpetrate fraud
• retaliatory and offensive behaviour
Accommodating Family Status

Discrimination on the basis of family status
has been given a broad interpretation:
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practices or attitudes which have the effect
of limiting the employment conditions of or
employment opportunities available to
employees on the basis of a characteristic
relating to their family
This interpretation is expanding
Health Sciences Assoc. of B.C. v.
Campbell River and North Island
Transition Society, 2004 BCCA 260
“If the term ‘family status’ is not elusive of definition, the definition
lies somewhere between the two extremes urged by the parties.
Whether particular conduct does or does not amount to prima facie
discrimination on the basis of family status will depend on the
circumstances of each case. In the usual case where there is no
bad faith on the part of the employer and no governing provision in
the applicable collective agreement or employment contract, it
seems to me that a prima facie case of discrimination is made
out when a change in a term or condition of employment
imposed by an employer results in a serious interference with a
substantial parental or other family duty or obligation of the
employee. I think that in the vast majority of situations in which
there is a conflict between a work requirement and a family
obligation it would be difficult to make out a prima facie case.”
Campbell River and North Island
Transition Society
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B.C. Court of Appeal’s test is very general
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Many aspects must be clarified:
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whether prima facie discrimination can arise from a change
in an employee’s personal circumstances rather than a
change in a term of employment
what constitutes a “serious” interference and a “substantial”
family obligation
whether “serious” and “substantial” are to be assessed on a
subjective, objective or “hybrid” basis
the scope of relationships to which this test applies
Campbell River and North Island
Transition Society
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Meaning of the statement that it will be difficult to make out a
prima facie case of discrimination in the “vast majority of
situations in which there is a conflict between a work
requirement and a family obligation”
Impact, if any, of a finding that an employer engaged in bad
faith
Impact, if any, of a governing provision in a collective
agreement or employment contract
How this test will be applied to cases of alleged
discrimination on the basis of family status in relation to:
•
•
•
•
discriminatory publication
discrimination in accommodation, service and facility
discrimination in tenancy premises
discrimination by unions and associations
Campbell River and North Island
Transition Society
 Implications for employers:
 Employers
must accommodate their
employees’ family obligations to the
point of undue hardship
 Accommodation claims are most likely
when employees are seeking:
• preferential shift schedules
• extra-contractual leave to attend to family obligations
• preferential holiday schedules
Defining the “Duty to Accommodate”

Inquiry into the duty to accommodate
must be individualized
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Employers cannot blindly apply a
uniform policy
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However, collective agreement terms
can help define the duty and what would
constitute undue hardship