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Accommodating Disabilities

Accommodating Chronic and Recurring (Episodic) Disabilities


Some of the most prevalent disabilities in Canada, including mental illness, cancer, HIV, and arthritis, 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 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.

  • Episodic disabilities generally: Why might it be helpful to categorize disabilities as different as arthritis and depression as “episodic”? What are the common characteristics of episodic disabilities? Which episodic disabilities are most prevalent in the workplace? Are substance use disorders episodic disabilities? What challenges do workers with episodic disabilities face that are different from the challenges of employees who have non-recurring disabilities? What benefits (e.g. sick leave, short-term disability, EI, etc.) are available to employees with episodic disabilities? How do short-term and long-term disability insurance programs apply to employees who may have relatively short but frequent periods of disability? Does the employer have an obligation to explain to an employee what short-term or long-term leave benefits may be available to assist an employee? Does the union have such a duty?
  • Disclosing and recognizing disabilities: Are potential employers legally permitted to ask job applicants if they have a disability? Why is disclosure at the application stage especially problematic from the viewpoint of employees with episodic disabilities? When should an employee disclose that he or she has an episodic disability? Should the employee wait for a period of illness to disclose? If an employee discloses an episodic disability but does not yet require accommodation, is the employer entitled to any medical information? Is the employer entitled to know the diagnosis or simply the nature of the illness? Is it advisable for the employee to provide some medical information? When and how should employers (or union representatives) discuss the need for accommodation with employees who are at work and showing signs of an oncoming episode of disability? How can employers make such inquiries and encourage a reticent employee (or an employee who lacks insight into his or her condition) to accept accommodation and treatment without exposing themselves to a claim of constructive discrimination?
  • Attendance management: Can employers count absences due to an episodic disability in an attendance management plan? 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? Must the medical information contain the same level of detail for each absence, even after the existence of the episodic disability is established? 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 is the scope of the employee’s duty to keep the employer apprised of his or her condition during an absence? How might an employee's disability, particularly a mental disability, affect an employee's ability to maintain communication and must employers and unions take such effects into account? When will an employer reach the point of undue hardship? At what point will repeated absences constitute an inability to attend work regularly that justifies dismissal? What role does the unpredictability of the absences play in the undue hardship analysis?
  • Accommodation: Besides allowances for certain periods of absence, what other accommodations are employees with episodic disabilities likely to need (e.g. flex time, working from home, etc.)? Do employees with episodic disabilities have a duty to engage in treatment that minimizes periods of disability? If so, is the employer entitled to information regarding the employee’s treatment? How much? What if the employee does not pursue treatment because of concerns regarding safety or side-effects? Who decides what treatment is reasonable? What are the best practices to adopt in accommodating employees with episodic disabilities? In what circumstances, besides those in which an employee is unable to attend work regularly, have adjudicators found an employer has reached the point of undue hardship in accommodating an employee with an episodic disability? Is it undue hardship for an employer to continue to accommodate an employee for the duration of the employment relationship? What inquiries regarding an employee's ability to work/prognosis must an employer make prior to dismissing an employee with an episodic disability on the basis that the employee is unable to meet the essential requirements of the job?


 
 
 
 

Interested?

E-mail Roshien Asanta or call (416) 977-6618 for more information. We can help to tailor a Customized Training package for you.



Sample Schedule



9:00 a.m. - 9:20 a.m.

 INTRODUCTION:  Welcome to the participants and introduction of Workshop Leader/Panelists

  • Brief introduction of the workshop, panelists, and workshop leader
  • What are the questions you would like answered today? What do you most want to talk about/learn more about?


9:20 a.m. - 10:15 a.m.

 PART 1:  Episodic Disabilities Generally

  • Why might it be helpful to categorize disabilities as different as arthritis and depression as "episodic?" What are the common characteristics of episodic disabilities? Which episodic disabilities are most prevalent in the workplace? Are substance use disorders episodic disabilities? What challenges do workers with episodic disabilities face that are different from the challenges of employees who have non-reoccurring disabilities?
  • What benefits (e.g. sick leave, short-term disability, EI, etc.) are available to employees with episodic disabilities?
  • How does the availability of such benefits affect the employer's duty to accommodate the employee?
  • How do short-term and long-term disability insurance programs apply to employees who may have relatively short but frequent periods of disability?
  • Does the employer have an obligation to explain to an employee what short-term or long-term leave benefits may be available to assist an employee? Does the union have such a duty?

10:15 a.m. - 10:30 a.m.

MORNING BREAK


10:30 a.m. - 12:00 p.m.

 PART 2:  Small Group Discussion based on Scenario One, "Meet Bob"


Instructions: Break into 4 small groups. Assign someone to record notes and report back. Each group considers the scenario and the questions that follow. Groups will report back to the larger group. Panelists will comment on the case as well.

12:00 p.m. - 1:00 p.m.

LUNCH


1:00 p.m. - 2:15 p.m.

 PART 3:  Small Group Discussion based on a Scenario Two, "Identification and Disclosure"


Instructions: Break into 4 small groups. Assign someone to record notes and report back. Each group considers the scenario and the questions that follow. Groups will report back to the larger group. Panelists will comment on the case as well.

2:15 p.m. - 2:30 p.m.

AFTERNOON BREAK


2:30 p.m. - 3:00 p.m.

 PART 4:  Attendance Management Programs – Large Group Discussion:


Attendance management programs are complex in the context of episodic health conditions. What are some of the issues related to these programs for people living with episodic disabilities? What issues have you encountered? How have they been addressed?


3:00 p.m. - 3:45 p.m.

 PART 5:  Review Priorities

  • Discuss priorities from flip-chart
  • What are your key take-aways?
  • Have we missed anything?


3:45 p.m. - 4:00 p.m.

 PART 6:  Wrap-up

  • Top two or three tips from each panelist


4:00 p.m.

 CONCLUSION:  Workshop Concludes



Additional Information


MATERIALS
Includes materials, with case summaries and analyses, prepared by Lancaster's legal staff.