Discipline and Discharge
Accommodation or Discipline?: A step-by-step guide to dealing with disability-related misconduct
Various types of disabilities, including substance dependency and mental health disabilities, may cause employees to "break the rules". Employers and unions face a host of challenging issues in cases of disability-related misconduct. Can an employee be dismissed for conduct caused, in whole or in part, by a disability? In light of the obligation under human rights law to accommodate employees with disabilities, how should parties determine whether discipline or accommodation is called for? How should accommodations be implemented in order to assist the disabled employee while ensuring workplace safety and minimizing the risks of future incidents? In what circumstances can accommodated employees be terminated for further misconduct? Join Lancaster's experts for a workshop that will canvass a range of legal issues in this area and provide strategies that employers and unions can use to address disability-related misconduct. Topics to be explored include:
- Understanding the duty to inquire: Is an employer required to investigate whether disability played a role in an employee's misconduct prior to imposing discipline? What steps should an employer take if management suspects that an employee's disability has contributed to misconduct? Are there typical behaviours or warning signs that may alert an employer to the possibility that misconduct is disability-related? What happens when an employee denies she or he has a mental health issue or substance dependency? Does a union bear any duty to make inquiries if it suspects workplace misconduct is disability-related?
- Meeting accommodation needs: What accommodative measures are appropriate in cases of misconduct caused by a disability? What medical evidence can an employer require in order to structure its response? What role should the union play in the accommodation process? How should the employer balance the need to accommodate the employee against the potential risk of harm to the health or safety of co-workers or clients? What changes to the employee's work life may be appropriate? Shift changes? Partial hours? Assignments with different colleagues? Administrative, rather than active, duty? Less stressful tasks? Are employers required to take the possibility of relapse into account when accommodating an employee with substance dependency?
- Considering discipline: What types of misconduct, if any, must an employer accept? Does an employer have the right to discipline an employee with a pornography or gambling addiction for inappropriate internet use in the workplace? Must an employer tolerate workplace theft or other dishonest conduct that is causally linked to an employee's disability? What about emotional or violent outbursts caused by an employee's mental health issues?
- Assessing undue hardship, last chance agreements, and other conditions: At what point will an employer be able to establish that it has accommodated an employee to the point of undue hardship? Does it matter if the employee's disability-related conduct is violent? Does it matter if the employee occupies a position of trust usually held to a very high standard (e.g. teachers, health care workers, etc.)? When can an employer require drug and/or alcohol testing as a pre-condition to continued employment? What sort of rehabilitation efforts are sufficient in order for an employee to return to the workplace? Are different approaches warranted in different industries? How can last chance or automatic termination agreements be structured in order to comply with human rights obligations? Can last chance agreements be used by an employer to establish that accommodation has reached the point of undue hardship? Should employees who successfully undergo rehabilitation post-discharge be reinstated?
- Reviewing current arbitral approaches: Will an arbitrator always reinstate an employee fired for misconduct where the employer has not properly accommodated the employee's disability? What is the difference between culpable and non-culpable conduct under the hybrid approach? Do arbitrators still actively employ the hybrid approach when assessing cases of disability-related misconduct? What evidence is required to establish a nexus between the disability and the misconduct? What sort of misconduct has been found to be caused partially or wholly by an employee's disability? Absenteeism? Insubordination? Theft? On the job impairment? Can arbitrators rely on medical evidence of an employee's disability that comes to light only after disciplinary action has been taken? How much weight, if any, do arbitrators place on post-discharge evidence of successful rehabilitation?
E-mail Roshien Asanta or call (416) 977-6618 for more information. We can help to tailor a Customized Training package for you.
9:00 a.m. – 9:25 a.m.
Introduction and Overview
9:25 a.m. – 10:15 a.m.
Duty to Inquire
Should an employer investigate whether disability played a role in employee conduct? What if the employer suspects that a disability contributed to misconduct? Are there common behaviours or warning signs? What role does the Union play? What if an employee denies there is an issue?
10:15 a.m. – 10:30 a.m.
10:30 a.m. – 11:20 a.m.
Meeting Accommodation Needs
What medical evidence can an employer require? What is appropriate as accommodation? What role should the Union play? Does the employer need to balance the needs of the accommodated employee with the health and safety of co-workers or clients? What about the possibility of relapse when accommodating an employee with substance dependency?
11:20 a.m. – 12:00 p.m.
Report back to full group on Scenarios 1(a) and (b)
12:00 p.m. – 1:00 p.m.
1:00 p.m. – 2:15 p.m.
Undue Hardship, Last Chance Agreements, and Other Conditions
When is undue hardship established? What about violent disability related conduct? Does it matter if the accommodated employee occupies a position of trust? Can an employer require drug/alcohol testing? What is a sufficient rehabilitation effort? Are different approaches warranted in different industries? Do last chance agreements comply with human rights legislation?
2:15 p.m. – 2:30 p.m.
2:30 p.m. – 3:45 p.m.
If Discipline Pursued: Culpable vs. Non Culpable Conduct, Post-Disciplinary Conduct, or Medical Evidence
What is the difference between culpable and non-culpable conduct? What evidence is required to establish a nexus between the disability and the misconduct? Can an employee be disciplined for specific conduct such as inappropriate Internet use, emotional or violent outbursts, absenteeism, insubordination, dishonesty, or on-the-job impairment where the employee has a diagnosed disability or dependency? Are employees always reinstated if they have been fired for misconduct and their disability has not been accommodated? What happens if medical evidence of a disability comes out after an employee is disciplined? What about post-discharge evidence of successful rehabilitation?
3:45 p.m. – 4:00 p.m.
Questions and Wrap-up
Includes materials, with case summaries and analyses, prepared by Lancaster's legal staff.