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Human Rights and Accommodation Conference

April 16 - 17, 2019
Hyatt Regency Vancouver


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Tuesday, April 16, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 1


New and Noteworthy: An update on the year's most significant cases

9:10 AM - 12:00 PM

Panelists

Jitesh Mistry
General Counsel
British Columbia Government and Service Employees' Union
Lindsay Waddell
Union Counsel
Moore Edgar Lyster
David Woolias
Employer Counsel
Harris & Company
TBA
Employer Counsel TBA


Panel Summary

Top advocates will review the most important decisions from courts, arbitrators, and human rights tribunals, as well as key legislative developments. The panel will also flag significant litigation and legislative reform on the horizon. Final selection of topics will take place a few weeks before the conference, ensuring up-to-date coverage of the most significant developments in human rights.

NETWORKING LUNCH

12:00 PM - 1:30 PM

Tuesday, April 16, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 2


When Rights Collide: Addressing competing rights in the workplace

1:35 PM - 2:45 PM

Panelists

Diana Juricevic
Chair
British Columbia Human Rights Tribunal
John McConchie
Arbitrator/Mediator

Jonathan Hanvelt
Union Counsel
Banister & Company
Veronica Ukrainetz
Employer Counsel
Ukrainetz Workplace Law Group

Panel Summary

While the saying "your rights end where mine begin" might sound simple enough, the task of figuring out how to balance one party's human rights claim against another person's legally protected rights creates daunting challenges for employers and unions. In this session, experienced lawyers and adjudicators will draw from three scenarios inspired by real cases to explore the appropriate process for assessing, handling, and resolving competing rights claims, addressing issues such as:

  • What steps should be taken if a worker expresses religious beliefs or requests a religious accommodation that appears to infringe on the human rights of other employees, such as the right to be free from discrimination in the workplace due to sex or sexual orientation?
  • How should employers and unions address an employee's request for disability or family status accommodation that conflicts with another employee's rights under a collective agreement, such as seniority rights? In what circumstances will an accommodation measure that interferes with collective agreement rights be found to constitute undue hardship?
  • What steps should be taken by workplace parties in cases of conflict between accommodation requests, for example, if one employee's request for disability accommodation conflicts with another employee's family status accommodation? Should seniority play any role in resolving such conflicts in a unionized workplace?
  • What are the main legal principles that should be considered when competing rights situations arise in the workplace?
  • Are there any alternative dispute resolution models or informal resolution processes that should be considered when resolving competing rights claims?
  • How much information can be disclosed to co-workers without violating an employee's privacy?

BREAK (with refreshments)

2:45 PM - 3:00 PM

Tuesday, April 16, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 3


You Can't Always Get What You Want: Getting medical information you need in disability accommodation

3:00 PM - 4:15 PM

Panelists

Jon Chapnick
Director of Human Resources and Labour Relations
RainCity Housing
Pamela Costanzo
Labour and Employment Lawyer
Forte Law
TBA
Medical Expert TBA


Panel Summary

In the context of disability accommodation, obtaining medical information necessitates striking a balance between an employee's right to privacy and an employer's or union representative's entitlement to supporting documentation. In this session, legal and medical experts will discuss effective approaches to reconciling these interests and best practices for handling medical information in support of disability accommodation.

  • Recent cases: What guidance do recent cases provide on the appropriate scope of requests for employee medical information?
  • Making inquiries: What constitutes appropriate questioning regarding an employee's health? When will requests for medical information amount to harassment or discrimination? Are there any special considerations when a psychiatric or psychological disability is involved?
  • Determining what information is necessary: In general terms, what type of information can an employer or union representative legally request in the context of a workplace accommodation? When can they ask for it? What if the only accommodation sought is a period of absence from work?
  • Requesting medical information: What is the most effective way for unions and employers to request information from physicians? If an employee has submitted a medical certificate from his or her own physician supporting an accommodation or absence request, when will the employer be justified in seeking further information and/or a specialist report? What is the process that should be followed in such cases?
  • Independent medical examinations: When can an employer require an independent medical examination (IME)? Is the employer entitled to choose the physician conducting the examination? What is the union's role in the IME process? What type of information can an employer legally require from an IME? Does the permissible scope of information depend on the reason for which the IME is sought (e.g. fitness to return to work, eligibility for benefits, etc.)?
  • Confidentiality: What steps must/should employers/unions take to protect the confidentiality of medical information in their possession?

END OF DAY ONE

4:15 PM

NETWORKING RECEPTION

4:15 PM - 5:15 PM

Wednesday, April 17, 2019


Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 4


The New Reefer Reality: Accommodating employee medical use post-legalization

9:10 AM - 10:30 AM

Panelists

M-J Milloy
Canopy Growth Professor of Cannabis Science, Department of Medicine, University of British Columbia; Research Scientist, BC Centre on Substance Use

Michelle Blendell
Employer Counsel
Young Anderson
Brian Savage
Legal Counsel
Teamsters, Local 213

Panel Summary

With recreational cannabis receiving the bulk of media attention, it's easy to forget that medicinal cannabis has been legal in Canada for nearly two decades. However, medical cannabis users still face stigma in their choice of treatment, and workplace policies frequently require that they be referred to substance abuse programs or abide by zero tolerance policies that were created with recreational users in mind. In this session, medical experts will join seasoned labour lawyers to discuss the appropriate use of medical cannabis, the information that must be disclosed, and suitable workplace accommodations, addressing issues such as:

  • Legal framework for medicinal cannabis: What is the current legal framework regulating medical cannabis in Canada? Has the legalization of recreational cannabis had any impact on this framework?
  • Medicinal cannabis use: What are some of the common medical conditions that are treated with cannabis? What are the advantages and disadvantages of using cannabis as a treatment? Are there any general guidelines that healthcare providers follow when prescribing it? Does cannabis consumption necessarily result in impairment?
  • Duty to disclose: In the absence of a workplace policy, does a medical cannabis user have an obligation to disclose his or her use? Is an employer entitled to information such as the particular amount and strain of cannabis that the employee consumes, the method of ingestion, or frequency of use? Can an employer demand that other treatments be attempted before using cannabis?
  • Workplace accommodations: What are some examples of appropriate workplace accommodations for employees who require medicinal cannabis? Are they entitled to smoke or vaporize medicinal cannabis in the workplace or at work-related events despite no smoking policies? Are employers required to permit cannabis impairment on the job in order to fulfill their duty to accommodate? In the absence of a reliable test for impairment, are employers entitled to refuse to place workers who consume medical cannabis into safety-sensitive positions?
  • Considering discipline: What is the appropriate response when an employee indicates, following a positive drug test or being found in possession, that the cannabis is for a medical condition? Will adjudicators uphold a termination or lengthy suspension when the employee discloses after the fact that he or she is using cannabis to treat a medical condition? What if the worker self-medicates with cannabis in order to treat a documented medical condition?
  • Benefit plans: Is it discriminatory for health benefit plans to refuse to cover medical cannabis?

BREAK (with refreshments)

10:30 AM - 10:45 AM

Wednesday, April 17, 2019


Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 5


This Job Makes Me Sick: What to do when the workplace contributes to disability

10:45 AM - 12:00 PM

Panelists

Dan Bilsker
Psychologist; Adjunct Professor, Faculty of Health Sciences, Simon Fraser University; and Clinical Assistant Professor, Faculty of Medicine, University of British Columbia

Megan Ashbury
Coordinator of Advocacy
British Columbia Government and Service Employees' Union
Julie Menten
Employer Counsel
Roper Greyell

Panel Summary

In this session, experts will examine some of the difficult questions that arise when workers claim that workplace stress, bullying, or interpersonal conflicts are making them ill. Such claims raise fundamental questions for both unions and employers about the organization of work and the legitimacy of management actions. Specific questions to be addressed include:

  • What are "stress" and "burnout?" Are they illnesses? Disabilities? What role does stress play in other mental and physical disabilities?
  • What is the appropriate response to an employee who goes on "stress leave" immediately after management has raised concerns about the employee's behaviour or performance at work? In such circumstances, can the employer assume the employee is abusing sick leave to avoid discipline or other types of management?
  • How do you draw the line between bullying and legitimate management actions such as performance management? Is the assessment based on an objective standard, or does an adjudicator examine the complainant's subjective impressions? Do employers have a duty to be more sensitive in dealing with individuals with mental disorders that make them especially sensitive to criticism, or is taking direction and criticism a bona fide occupational requirement?
  • Would changing an employee's supervisor or asking the employee's supervisor to adopt a different management style constitute undue hardship in situations where interaction with the supervisor is contributing to an employee's disability?
  • What is the appropriate response when an employee claims that his or her workload is causing or aggravating a mental illness or disability? Are employers required to change performance standards or reduce workloads for stressed employees?
  • How should employers and union respond when an interpersonal conflict appears to be adversely affecting the mental health of one or more employees? Does it matter whether the behaviour at issue constitutes harassment or bullying? How can unions fulfil their duty to fairly represent all members when members are in conflict?
  • What is the role of the workers' compensation system in situations where employees claim that working conditions (such as workloads or bullying) are causing or aggravating a mental disability?

NETWORKING LUNCH

12:00 PM - 1:00 PM

Wednesday, April 17, 2019


Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 6


Recruiting and Retaining a Diverse Workforce: Best practices for employers and unions

1:00 PM - 2:15 PM

Panelists

Parker Johnson
Harassment and Discrimination Prevention Specialist
British Columbia Institute of Technology
Natasha Tony
Assistant Steward
International Alliance of Theatrical Stage Employees, Local 891

Panel Summary

Given widespread recognition of the advantages associated with diversity, most organizations have taken steps to promote diversity in the workplace. Yet conventional workplace diversity programs and policies have not always proven successful, and many people still experience barriers to inclusion in hiring and employment. In this session, experts will provide insight into practical measures that employers and unions may take to recruit and retain a diverse workforce.

  • Understanding diversity: What constitutes a diverse workforce? What are the benefits of diversity in the workplace? How does diversity affect productivity? Do organizations with diverse workforces have a competitive advantage?
  • Barriers in recruitment and hiring: How can employers improve recruitment and hiring practices to build a more diverse workforce? What barriers may diverse applicants encounter in recruitment and hiring processes? How does an employer's duty to accommodate apply during the hiring process?
  • Inclusivity at work: What is an inclusive workplace? What factors contribute to an inclusive workplace? What is unconscious bias, and what is its effect on the workplace? Can diversity and inclusion training help employers and unions create a more inclusive workplace?
  • Communication and conflict: What types of communication challenges may arise in a diverse workplace? How can employers and unions facilitate collaboration and improve communication between diverse employees? What are effective approaches to conflict management and resolution in a diverse workplace?
  • Addressing racism, discrimination, and harassment: In addition to complying with relevant obligations under existing legislation, what steps can employers and unions take to prevent or respond to racism, discrimination, and harassment in the workplace? How can employers create a respectful organizational culture and working environment?
  • Retention: What types of strategies are effective for retaining a diverse workforce? What factors influence diverse employees' decisions to stay at or leave an organization? Why might a diverse workforce be unresponsive to traditional retention strategies? What steps should employers take to address high rates of turnover?

BREAK (with refreshments)

2:15 PM - 2:30 PM

Wednesday, April 17, 2019


Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 7


Harassment Investigations: The top do's and don'ts

2:30 PM - 3:45 PM

Panelists

Will Clements
Union Counsel
Koskie Glavin Gordon
Heather Hettiarachchi
Employer Counsel
Integritas Workplace Law
Lisa Southern
Workplace Investigator and Lawyer
Southern Law

Panel Summary

As the number of complaints continues to rise, employers and unions must ensure that they understand and are prepared to fulfil their responsibilities in responding to allegations of workplace harassment. In this session, leading counsel will share do's and don'ts for conducting fair and effective harassment investigations.

  • Do act promptly in planning and initiating an investigation: What steps must an employer take once it becomes aware of an allegation of workplace harassment to comply with its legal obligations under provincial or federal legislation? What are the essential qualities or qualifications of a competent investigator? When should an external investigator be retained? What types of issues may need to be addressed before an investigation begins?
  • Don't overlook the requirements of procedural fairness: What does procedural fairness require in the context of a harassment investigation? Are employees accused of harassment entitled to know the allegations against them?
  • Don't neglect interim measures during the investigation: What interim measures may be considered by the employer or requested by the union while the investigation is ongoing? When should the respondent be removed from the workplace pending the outcome of the investigation?
  • Do consider proportionality in responding to an investigation: Can an employer rely solely on an investigation report as the basis for discipline? Is discipline always the best response to workplace harassment? What measures should an employer take when an allegation is not substantiated?
  • Don't ignore confidentiality considerations: How much information about an incident or complaint of harassment can be kept confidential? What are the employer's obligations to disclose or withhold the investigation report, witness statements, or other documents that form part of the investigation?
  • Do respect the role of the union: What is the role of the union in an investigation? When should the union conduct a parallel investigation? How can a union meet its duty of fair representation if both the complainant and respondent are union members? Do employees being interviewed during an investigation have the right to union representation?

CONFERENCE ENDS

3:45 PM

Keynote Speakers


Monday, April 15, 2019



Accommodating Employees with Episodic Disabilities: A guide to dealing with recurring health conditions

9:00 AM - 4:00 PM

Workshop Leaders

Margaret Tebbutt
Senior Consultant of Workplace Initiatives and Trainer
Canadian Mental Health Association, BC Division
Laurel Mansfield
Organizational Health Consultant, Vancouver, Group Customer
Great-West Life
Matthew Larsen
Employer Counsel
Fasken
Tamara Ramusovic
Union Counsel
Moore Edgar Lyster

Workshop Summary

Some of the most prevalent disabilities in Canada, including mental illness, arthritis, HIV, and some types of cancer, can be characterized as episodic disabilities, which are defined as disabilities involving periods of good health alternating with periods of illness or disability. The accommodation of employees with episodic disabilities presents special challenges, such as maintaining contact between an employer and employee during prolonged absences and determining when it's appropriate for an employee to work and when it's appropriate for an employee to take time off. Attendees at this workshop will learn strategies for accommodating employees with episodic disabilities that comply with the requirements of human rights legislation.

Participants will leave the session with the knowledge and skills necessary to:

  • Appreciate the difference between the challenges faced by employees with episodic disabilities and those faced by employees who have non-recurring disabilities.
  • Identify insurance options and arrangements with insurance companies for the support of employees with episodic disabilities.
  • Approach employees about the possible need for accommodation in a helpful, non-threatening way.
  • Establish and maintain effective communication regarding changing accommodation needs.
  • Support and accommodate employees with episodic disabilities.

VIEW THE WORKSHOP AGENDA



Thursday, April 18, 2019



Dealing with Difficult People: Bullying bosses, sensitive employees, and other challenging personalities

9:00 AM - 4:00 PM

Workshop Leaders

Cathy Knapp
Arbitrator/Mediator

Maggie Campbell
Employer Counsel
Roper Greyell
Karlan Modeste
Legal Counsel
British Columbia Teachers' Federation
TBA 
Medical Expert TBA


Workshop Summary

Work doesn't always bring out the best in people. Whether it's a demanding boss, hostile colleague, or overly sensitive employee, there are many personalities that can cause friction, and few workplaces escape without having at least one "character." But at what point does a prickly personality cross the line into harassment or bullying? Are there any behaviours that should raise suspicions of an underlying mental disability? When will a disciplinary response be appropriate? How can unions defend the difficult worker, while at the same time protecting members who are adversely affected by the behaviour?

In this interactive workshop, an experienced psychologist, arbitrator, and legal counsel will lead participants through realistic scenarios, providing them with the knowledge necessary to:

  • Identify the "personalities" or patterns of behaviour that consistently create problems in the workplace.
  • Determine when behaviours maladapted to the workplace meet the definition of a "mental disability" triggering the duty to accommodate under human rights legislation.
  • Reconcile the union's role in defending the difficult worker with its obligations towards members who are adversely affected by the behaviour.
  • Distinguish between bullying behaviour and legitimate performance management.
  • Effectively communicate with persons exhibiting difficult behaviours.

VIEW THE WORKSHOP AGENDA



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