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Introductory remarks by Co-Chairs
8:45 a.m. – 9:00 a.m.

Employers want enough information about job applicants to ensure they hire the best candidate for the job. However, in their pursuit to obtain necessary information employers can run afoul of human rights and privacy laws, even with well-meaning questions and tests. The rise of social networking and the proliferation of personal information available on the internet also pose a dilemma for employers making hiring decisions. It’s not necessarily clear what personal information available on the web is public and what is considered private. In this session Lancaster’s panel of experts will address these and the following issues:

• Ads, Application Forms and Interviews: What questions in pre-employment questionnaires or interviews contravene human rights legislation? What are some examples of seemingly innocuous questions that adjudicators have held to be discriminatory? Can employers post job advertisements that state qualifications that go beyond the requirements for the immediate job? Why should an employer be cautious about rejecting applicants because they are "overqualified?" Can an employer fire an employee if it later discovers that an employee provided inaccurate information or lied during the hiring process?

• Background Checks: Must a prospective employer obtain explicit consent to perform a background check on a job applicant? How can prospective employers protect themselves from violating applicants’ privacy rights or human rights when conducting background checks? Can employers run credit checks on prospective employees? Are employers permitted to run ‘social checks’ on job applicants (e.g. accessing Facebook pages)? How should employers treat information obtained from Googling a prospective employee’s name? If employers are going to base hiring decisions on background checks, do they have an obligation to make sure the information they have obtained is accurate? Can employers be held liable for the actions of a hired background checker?

• References: Must a prospective employer obtain explicit consent from a potential employee before contacting a potential employee’s references? In light of privacy legislation, must a former employer obtain consent from a former employee before giving a reference about that individual? Can a referee protect his or her identity from being disclosed to the former employee? What potential liability does an employer face as a result of providing a reference that an employee claims is defamatory? Can a former employer be held liable, based on "negligent referencing," for the injurious acts of a former employee? What measures can employers take to minimize this potential liability for references they provide?

• Tests: Can potential employers subject job applicants to psychological or personality testing? What is the extent of an employer’s duty to accommodate a disabled job applicant in pre-employment testing? Must the employer provide applicants with disabilities additional time to complete skills tests or written tests? Must employers provide opportunities for disabled applicants to re-take tests? What is the extent of an employer’s duty to accommodate a disabled probationary employee who is being "tried out" in a position?

• Remedies: What remedies will adjudicators award when an employee’s human rights or privacy rights are violated in the hiring process?

Episodic disabilities are disabilities that are characterized by periods of good health alternating with periods of illness or disability. These episodes of disability often occur unpredictably and their duration is uncertain. Some of the most prevalent disabilities in Canada, including mental illness, arthritis, and cancer can be characterized as episodic disabilities. The accommodation of employees with episodic disabilities presents significant challenges, such as maintaining contact between 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. Lancaster’s panel of experts will discuss these challenges and the following issues:

• Episodic Disabilities Generally: What are the characteristics of some common episodic disabilities? What are the unique challenges in accommodating these disabilities? Why might it be helpful to categorize certain disabilities as "episodic"?

• Recognizing Disabilities: When must an employee disclose an episodic disability to an employer? When and how should employers (or unions) discuss the need for accommodation with employees who are at work and showing signs of an oncoming episode of disability? Are attendance management plans helpful tools that identify employees with episodic disabilities? Or are they a form of discrimination against such employees?

• Accommodation: What are the best practices to adopt in accommodating employees with episodic disabilities? What aspects of an attendance management plan or policy cannot be applied to employees with episodic disabilities because they are discriminatory? Is it discriminatory to offer a full-time employee part-time work as an accommodation? Does an employee with an episodic disability have a duty to make use of assistance offered by an employer, such as counselling services? When will an employer reach the point of undue hardship? Can an employer argue that accommodating an employee with an episodic disability is undue hardship because the employee’s unpredictable absences will place an undue burden on other employees? Or significantly decrease workplace morale and productivity?

• Communication During Absences: What should employers do to maintain communication with employees absent from work for an episode of disability? To how much information is the employer entitled in order to support an ongoing absence or entitlement to benefits? What information is required before an employee can return to work? What type of communication should unions maintain with members who are off work due to an episode of disability? Do unions breach their duty of fair representation if they do not maintain adequate communication with members regarding their fitness to work, possible accommodations and return to work? What responsibility do employees have to keep the lines of communication open with both employers and unions?

A return to work after illness or an episode of disability can be difficult for both employees and employers. As with other aspects of the accommodation process, a return to work raises difficult questions: What type of medical information must an employee provide an employer to prove fitness to work and to facilitate accommodation? What types of accommodations are reasonable upon a return to a workplace? How can unions assist with returns to work? Lancaster’s panel of experts will address these questions as well as the following:

• Duty to Accommodate Through Return to Work: What obligation does an employer have to return disabled employees to work? Are there certain timelines workplace parties should be aware of? Does the employer’s obligation to return a disabled employer to work end after the employee has been unable to work for a certain length of time? Is the employer obliged to make efforts to return an employee to work if the employee is or appears to be uncooperative? Is there a duty to treat employees fairly throughout the accommodation process and what are the consequences of a failure to fulfill this duty?

• Procedural Aspects of the Process: What is the procedural duty to accommodate as it relates to returning an absent employee to work? Should employers wait for disabled employees to advise them they are ready to return to work? Or should they maintain communication with disabled employees regarding their ability to return to work? Must the employer discuss a doctor's medical opinion with the employee? Is the employer required to set out the consequences of failing to return to work before dismissing an employee? What kinds of damages have been awarded for breach of the procedural duty to accommodate an employee?

• Employee’s Duties in Accommodation: How flexible must employees be in accepting employer offers of accommodation? Can employees insist on returning to their original job? What if the job has been filled? What are the important elements of a reasonable alternative position? The same rate of pay? Status? Core job functions? Location? Does a failure to provide information to the employer, or meet with the employer, breach the employee's duty to participate in accommodation? Where an employee repeatedly refuses the employer's return to work proposals, can the employer dismiss the employee? When have adjudicators found an employee's refusal of a return to work proposal justified? When have they found employee refusals to be unjustified?

• Union’s Role: What role does the union play in the return to work process? What representation challenges are created where return to work proposals are contrary to the collective agreement and/or impact on the rights of other bargaining unit employees?

• Discriminatory Return to Work Conditions: What return to work conditions can employers not insist upon because they are discriminatory? Can employers require employees to continue a certain course of treatment or rehabilitation as a condition of returning to work? Can they require employees to submit regular medical reports detailing the progress of their treatment or rehabilitation?

• Undue Hardship: What are some instances in which adjudicators have found that returning an employee to work would constitute undue hardship?

It often seems that lawyers and health professionals speak different languages. Obtaining the information necessary to provide appropriate accommodation to employees is difficult because physicians, union representatives and management representatives may all have different ideas of what information is necessary. It is also often difficult to frame requests for information in a way that elicits the necessary information but does not cause alarm by seemingly asking for too much information. Knowing what evidence must be produced in legal proceedings is also an area of confusion. In this panel, lawyers and health care providers will offer guidance on asking the right questions to receive the information you need and address the following issues:

• Necessary Information: What obligation does an employee have to alert the employer that accommodation is necessary? Must the employee alert the employer at the beginning of the employment relationship if the need is known at that time? When will arbitrators impute to employers "constructive knowledge" of a disability? What information may an employer legally request (and what must an employee provide) in order to assess appropriate accommodation? Is the employer entitled to the employee’s diagnosis, prognosis, or information on the employee’s treatment?

• Requesting the Necessary Information: What is the most effective way of requesting the information you need? How should unions and employers request information from physicians? How specific should they be in their requests? What questions are likely to prompt physicians to provide useful information? What types of questions are likely to result in physicians providing vague information? Are standardized forms helpful? If so, what should and should not be on standardized forms? What are some examples of doctors’ notes that are too vague? If you receive a vague response, how should you request more specific information? How much time should employers give employees to get the medical information they have requested?

• GPs, Specialists and Other Health Professionals: Is medical information from an employee’s treating GP sufficient for accommodation purposes? When do you need information from a specialist physician? How should employers treat information from health care professionals who are not physicians, for example, physiotherapists? For mental health issues, is information from a GP sufficient? Or should you seek medical information from a psychiatrist? How should parties treat information from licensed counselors and psychologists? When is an independent medical exam appropriate? When can the employer ask an employee to see a physician of its choice? Are there particular types of questions that general practitioners are ill-equipped or reluctant to answer? What guidelines and/or professional rules guide physicians in providing information to employers and unions?

• Medical Evidence in Legal Proceedings: What medical information must be disclosed to the employer during the grievance/arbitration process? Can the employer review and redact an employee’s medical file from its occupational health department/provider prior to producing this information to the union/employee? What conditions to disclosure will an arbitrator order to protect an employee’s privacy interests? What are the characteristics of persuasive medical evidence? When must a physician attend an arbitration or human rights hearing to give testimony regarding a medical report? Who pays for the physician’s attendance?

End of Day One
4:00 p.m.

Employees are often faced with conflicts between their family and work responsibilities. Traditionally, balancing these competing responsibilities has been the responsibility of the employee alone. However, recent developments in the law suggest that the prohibition of discrimination based on "family status" may mean that employers must work with employees to help them balance work and family responsibilities. Lancaster's panel of experts will discuss these legal developments and address the following issues:

• Family Status Defined: What is "family status"? Who counts as "family"? Does it include family obligations to take care of sick or disabled relatives? Does the prohibition of discrimination based on family status prohibit nepotism? What about anti-nepotism policies? Are they prohibited?

• Competing Approaches: What are the two competing tests used to determine whether a prima facie case of family status discrimination has been established? Which approach prevails in which jurisdictions and in which forums? What do the competing approaches mean from a practical perspective when presenting a case where family status is an issue?

• Examples of Discrimination: When might a supervisor’s questions about an employee’s family life constitute harassment or evidence of discrimination? Is it harassment if a supervisor suggests that an employee may need to find another position that would be more compatible with the employee’s family obligations? Is it discriminatory to offer a part-time position to a full-time employee who requests significant schedule changes to accommodate childcare obligations?

• Accommodation: Are employers required to conduct an individual assessment of each employee's "family status" needs? Do employers have to accommodate employees’ "routine" childcare obligations? Does it make a difference if a child has special needs? Must employers accommodate child custody arrangements? What kinds of accommodation can employees request? Leaves of absence? Modified work schedule? Particular shifts or hours? What are the employee's responsibilities in the accommodation process? Is it a pre-condition to accommodation that an employee exhaust other alternatives? Can the employer require an employee to make changes to his or her family obligations instead of accommodating the employee's circumstances?

• Undue Hardship: What will amount to undue hardship to the employer? What factors do adjudicators consider to determine whether an employer has accommodated an employee to the point of undue hardship? Can the employer argue that the number of employees who may seek a similar accommodation amounts to undue hardship?

While employers and unions are accustomed to dealing with forms of harassment prohibited by human rights legislation, uncertainty still abounds in the area of personal harassment, or bullying. Determining what constitutes bullying behaviour is not always an easy task, and responding appropriately to bullying can be more difficult still. Matters become even more complicated when employees act out in verbally or physically aggressive ways because of mental illness. In this session, Lancaster's panel of experts will discuss this developing area of the law. Topics include:

• Bullying/Personal Harassment: What is the difference between personal harassment and harassment prohibited by human rights legislation? What is "personal harassment"/bullying? Are the following included: Foul language? Threats? Gossip? Deliberate isolation? Unfair distribution of workload? Denial of privileges? Can a single episode or a series of discrete incidents constitute harassment? At what point does the workplace become a poisoned environment? How can you distinguish between bullying, an aggressive management style and simple insensitivity? When does a workplace investigation cross the line and become personal harassment?

• Technology and Harassment: Can employers monitor email or text messages for signs of bullying/harassment? What about social media such as blogs, Facebook, Twitter, etc.? Should they engage in such monitoring? Must they? How should employers respond to the technological bullying that takes place outside working hours and with personal computers?

• Threats and Violence: Should the discipline imposed for uttering threats vary depending on whether or not the individual who uttered the threats had an intention to actually carry them out? Has the proliferation of anti-harassment and workplace violence legislation across the country influenced arbitrators to be less lenient towards grievors disciplined for uttering threats? What constitutes appropriate discipline for engaging in violence in the workplace? Is a zero-tolerance policy advisable? How should workplace parties deal with an employee whose mental illness caused him or her to utter threats or engage in violence in the workplace?

• Remedies: What remedies for harassment and violence are created by health and safety legislation? What remedies have arbitrators awarded in response to personal harassment grievances? What remedies are available in court for employees who have been harassed? Can employees sue if their supervisor's harsh or offensive comments cause them to experience mental suffering? Does it matter if the supervisor intends this harm or not?

• Policies, Prevention, Education and Solutions: What legal requirements exist with regard to establishing anti-harassment policies and education? What innovative anti-harassment policies and education programs have workplace parties recently implemented? How can employers repair a poisoned workplace? What is the union’s role in repairing a poisoned workplace?

It is widely accepted that complaints of violence and harassment must be investigated promptly, thoroughly and fairly in order to preserve peace in the workplace and in order to meet legal obligations created by human rights legislation, health and safety legislation and, in some instances, collective agreements. However, the details of how such investigations should be conducted may be less clear in light of recent developments in the law. Must every complaint be investigated, even if it is stale or seems completely unfounded? What type of protections should be put in place for complainants, witnesses and accused employees? What type of union representation should employees have during investigations? Our panel of experts will address these questions, providing guidance on the appropriate response to harassment complaints:

• Legal Responsibility: Must employers investigate all complaints of harassment? What about unions? Can employers and unions ignore "stale" and/or seemingly unfounded complaints? What liability do employers incur if they fail to conduct an investigation or conduct it improperly?

• Investigation: Who should conduct the investigation: internal or external investigators? What are the essential elements of a harassment investigation? When should the complainant and/or the respondent be removed from the workplace pending the results of the investigation? What types of searches (cell phone searches, electronic searches, internet search history, personal searches, etc.) can employers conduct? Can the employer use searches of employees' e-mail and/or video surveillance to investigate suspected harassment at the workplace? What are appropriate techniques for assessing credibility when versions of events conflict?

• Procedural Protections: What procedural protections (as to confidentiality, non-reprisal, etc.) should be put in place for the employee subject to investigation, as well as for complainants and witnesses?

• Employee Duties: Do employees have a duty to cooperate with an employer's harassment investigation? Can they be disciplined for refusing to answer the employer's questions? Are they required to respond to queries about another employee's misconduct?

• Union Representation at Interviews: When is union representation required at an interview? Is union representation only necessary when the interview could result in the discipline of the employee being interviewed? What are the consequences for failure to allow/ensure the presence of a union adviser?

• Investigation Reports: Who is entitled to a copy of the investigation report, investigator's notes and other documents relied upon in the investigation? Which portions of the investigation report should be disclosed and which should be withheld under privacy legislation or based on privilege?

Prominent counsel will review recent legislative changes and important decisions delivered in the past year by Canadian courts, tribunals, and arbitrators. In particular, they will discuss what trends can be discerned from recent caselaw and legislation dealing with critical issues in human rights and privacy law. The selection of cases for this session takes place a few weeks before the conference, ensuring up-to-the-minute coverage of late-breaking decisions.

CONFERENCE ENDS
4:00 p.m.

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