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What You Don't Know Can Hurt You: When does the law impose a "duty to inquire" about disability?

Thursday, September 27, 2018, 12:30 pm - 2:00 pm EDT



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Moderators


Keith Burkhardt

Employer Counsel
Sherrard Kuzz
Anne Gregory

Legal Counsel
Manitoba Nurses Union

Speakers


Mike Condra

Adjunct Assistant Professor, Department of Psychology
Queen's University
Crystal Norbeck

Union Counsel
Gerrand Rath Johnson
Andrew Schafer

Employer Counsel
Norton Rose Fulbright

Issues

Arbitrators and other adjudicators have consistently held that an employer has a "duty to inquire" into an employee's health and possible need for accommodation if an employee displays unusual behaviour that may be indicative of a mental health issue. In some cases, a union may also need to inquire into a member's health in order to meet its duty of fair representation. In this session, experienced lawyers and a mental health expert will describe the behaviours that may trigger a duty to inquire and provide practical tips on how employers and unions can broach the subject of mental health with workers. Specific issues to be addressed include:

  • How prevalent are mental health conditions in the workplace? What are the signs and symptoms of mental illness that are most likely to manifest themselves in the workplace?
  • In what situations have adjudicators found that an employer had a duty to inquire into an employee's mental health? What factors/signs should employers look for in deciding whether to inquire about mental health issues?
  • What is the extent of the employer's duty to inquire into an employee's health if it suspects that a disability may be impacting his/her attendance? At what stage in the process should such an inquiry be made, and by whom?
  • When will a union need to inquire into an employee's mental health in order to meet its duty of fair representation and/or its obligations under human rights legislation?
  • When questioning an employee regarding his or her mental health, what constitutes appropriate questioning and how is such questioning to be distinguished from overly intrusive or discriminatory inquiries? What are some practical tips and best practices for raising the potential need for accommodation with an employee? How should employers and unions deal with the issue of denial in the face of evidence that a disability in fact exists?
  • How does the Supreme Court of Canada's decision in Stewart v. Elk Valley Coal alter the duty to inquire? Are employees who engage in misconduct related to a disability now prevented from raising discrimination and accommodation arguments at arbitration if they did not notify the employer before the misconduct occurred?
  • How do mental health disabilities, particularly substance use disorders, affect an employee's choice or control over conduct in the workplace?

Additional Information

MATERIALS
Valuable, up-to-date materials and case summaries will be available for downloading from our website. Each audio conference is accompanied by a PDF of concise summaries of the cases discussed.

AUDIO FILES
Audio conference MP3 files are available for $255. Those who have purchased the live audio conference may purchase the corresponding downloadable audio MP3 file for the discounted price of $155.

The recorded MP3 file and materials are available for download one business day after the live audio conference. After purchasing, you will receive an e-mail with instructions on how to access and download the audio conference MP3 file and materials by visiting My Account and selecting Order History. For audio file purchases for upcoming audio conferences, once the MP3 file is available through our site, registrants will receive an update e-mail informing them that the links are now ready.

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