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National Human Rights and Accommodation Conference

National • May 18 - 20, 2021
Virtual Event


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Tuesday, May 18, 2021


Introductory remarks 12:30 PM - 12:35 PM  


Panel 1


Headlines in Human Rights: Major caselaw and legislative update

12:35 PM - 1:50 PM

P.A. Neena Gupta
Employer Counsel
Gowling WLG
John McLuckie
Union Counsel
Jewitt McLuckie & Associates LLP
Karlan Modeste
Legal Counsel
BC Teachers' Federation
David Wong
Employer Counsel
Fasken Martineau DuMoulin LLP

Panel Summary

In this session, seasoned experts will review the most important legal developments of the past year and flag significant litigation and legislative reform on the horizon. Topics to be addressed include major remedial awards from human rights tribunals, the latest cases on the extent of the duty to accommodate and undue hardship, and the Supreme Court of Canada's decision on adverse-effect discrimination in pension plans. Final selection of topics will take place in the weeks leading up to the conference, ensuring coverage of the latest and most important developments.

Break

1:50 PM - 2:05 PM

Tuesday, May 18, 2021


Introductory remarks 12:30 PM - 12:35 PM  


Panel 2


Under the Influence: An update on substance use and impairment in the workplace

2:05 PM - 3:20 PM

Kristine Barr
Legal Representative
Canadian Union of Public Employees (Manitoba Regional Office)
Chris Leenheer
Employer Counsel
Harris & Company LLP
Dr. Lisa Lefebvre
Assistant Professor, Department of Psychiatry, University of Toronto, and Staff Physician, Addiction Medicine Service, Centre for Addiction and Mental Health


Panel Summary

Impairment caused by substances including alcohol, cannabis, prescription medications, and illicit drugs is one of the most significant challenges faced by employers and unions in attempting to balance the responsibility to provide a safe workplace against the duty to accommodate workers with substance use disorder. While the duty to accommodate up to the point of undue hardship is not in question, the caselaw regarding how it is to be carried out in practice continues to evolve, with workplace parties often struggling to correctly apply the general principles to their own situations. In this panel, leading advocates and a subject matter expert will examine the lessons learned from the latest decisions of courts, arbitrators, and human rights tribunals involving the accommodation of substance use disorders. They will address the following questions:

  • Are there common symptoms or workplace behaviours that are red flags that could indicate that a worker is struggling with problematic substance use? What steps should an employer take when it suspects that a worker may have a substance use disorder? What is the union's role in this process?
  • What efforts are workers required to make in order to fulfill their obligations to facilitate the accommodation process? Do they have to acknowledge that they have a problem, seek treatment, or take other steps to deal with their condition? How do workers' insights into their health issues factor into this?
  • Do recent cases provide any guidance to workplace parties on how to conduct an individualized assessment for purposes of accommodation? Given the lack of an objective test that can readily detect drug-related impairment, are there other measures workplace parties should consider when assessing whether individual employees are able to safely perform their respective jobs?
  • Does the Newfoundland and Labrador Court of Appeal's decision in International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc. indicate that adjudicators are less willing to accept inability to measure impairment as sufficient to establish undue hardship in a safety-sensitive environment? What else must an employer demonstrate in order to meet this threshold?
  • What are some examples of measures that can be put in place to accommodate employees with substance use disorders? What are some examples of treatment or monitoring mechanisms that have been found to be excessively intrusive or violations of privacy rights?
  • What role does a last-chance agreement play in establishing undue hardship? On what grounds have arbitrators recently overturned these agreements, ruling that a violation of their terms is not sufficient to establish undue hardship? Where do recent cases draw the line on accommodating relapses such that any further obligation to tolerate relapses would amount to undue hardship?

Break

3:20 PM - 3:30 PM

Tuesday, May 18, 2021


Introductory remarks 12:30 PM - 12:35 PM  


Keynote Address


The Mental Health Impacts of COVID-19 on Canadian Workers and Potential Solutions

3:30 PM - 4:00 PM

Keynote Speaker

Dr. Roger McIntyre
Professor of Psychiatry and Pharmacology
University of Toronto, and Head of the Mood Disorders Psychopharmacology Unit, University Health Network

Topic

COVID-19 has resulted in a public health, economic, and mental health crisis. The economic shock and employment insecurity along with other factors related to COVID-19 are predicted to increase the rate of suicide and of mental disorders associated with suicide. Evidence also indicates that individuals employed in small businesses and the face-to-face economy are at especially higher risk. This presentation will discuss the effects of COVID-19 on mental health, the association between employment and suicide, and strategies to reduce suicide and the mental health hazards of COVID-19.

End of Day one

4:00 PM

Thursday, May 20, 2021




Panel 3


Walking the Talk: Combatting systemic racism through everyday allyship

12:30 PM - 1:45 PM

Hasan Alam
Staff Lawyer
B.C. Government and Service Employees' Union
Richard Sharpe
Director, Equity, Anti-racism, Diversity and Inclusion
Department of Justice Canada
Dr. Lisa Gunderson
Racial Equity Consultant, Anti-Racist Facilitator & Trainer, and Clinical Psychologist
One Love Consulting

Panel Summary

In 2020, as the COVID-19 pandemic exposed long-standing racial and ethnic disparities in health, the death of George Floyd in police custody ignited worldwide anti-racism protests and the resurgence of the Black Lives Matter movement. These events have generated widespread awareness of systemic racism and its effects, especially with respect to Black and Indigenous communities, and anti-racist initiatives have consequently garnered unprecedented levels of public support. While leaders work to dismantle systemic racism within their organizations, many individuals outside of leadership roles have felt unsure about what they can do to contribute on a personal level. In this session, experts will explore concrete steps that individuals can take to become allies in combatting systemic racism and advancing racial equity both within and beyond the workplace.

  • What does it mean to be an ally in the fight for racial equity? In what ways do definitions of allyship vary?
  • Why are aspiring allies often asked to be prepared to "do the work," and what does that work entail? What knowledge and forms of learning or unlearning are necessary for meaningful allyship?
  • How does privilege affect an individual's everyday experiences in the workplace? How can allies provide meaningful support to their Black, Indigenous, and other racialized co-workers?
  • How can allies best respond to racial microaggressions or other forms of racist remarks in the workplace?
  • What roles do allies have in starting or continuing broader conversations about workplace racism? What strategies can allies use to overcome discomfort, defensiveness, and other challenges associated with difficult conversations about privilege and race?
  • In what other ways can allies work proactively toward anti-racism and equity in the workplace? What opportunities are available to allies who are not in leadership or management positions?
  • To what extent is allyship only a first step for individuals in combatting systemic racism? What long-term goals can allies strive to achieve?

Break

1:45 PM - 2:00 PM

Thursday, May 20, 2021




Panel 4


This Changes Everything: Accommodation in the wake of COVID-19

2:00 PM - 3:15 PM

Goretti Fukamusenge
Grievance and Adjudication Officer
Public Service Alliance of Canada
Erin Ludwig
Senior Legal Counsel
Alberta Health Services

Panel Summary

Rules put in place to prevent the transmission of COVID-19 have required many workplaces to institute alternative work arrangements — such as work from home — that have created new and different accommodation needs for employees with family care obligations or disabilities. As workers begin returning to the office, new workplace rules and practices related to COVID-19 and vaccination may trigger even more novel requests for accommodation related to disability, family status, religion, creed, or political belief. In this session, leading human rights lawyers will provide an update on how adjudicators and workplace parties themselves have resolved current and emerging COVID-related accommodation disputes so far. Final selection of cases to be discussed will take place a few weeks before the conference to ensure that we capture the latest developments. Questions to be addressed include the following:

  • What types of disputes regarding family status or disability accommodation have arisen? What arrangements have workplace parties negotiated to deal with these? How have adjudicators resolved these disputes?
  • Given that the flu and colds have been held not to be disabilities, are COVID-19 or long-haul COVID-19 considered disabilities under human rights legislation? If long-haul COVID-19 is recognized as a disability, what type of medical information is necessary to establish an employee has it?
  • How should employers accommodate employees who are at higher risk of experiencing severe illness from contracting COVID-19? Do employers have a duty to keep unvaccinated workers out of the workplace to protect these individuals? What medical information will employees be required to provide to demonstrate a need for accommodation on this basis? How have adjudicators resolved disputes around this issue?
  • How should employers who have permitted their employees to work from home during the pandemic accommodate workers who fear they will catch COVID-19 by returning to the workplace? Does this fear and anxiety amount to a disability that must be accommodated?
  • Will employers be required to accommodate employees who refuse to be vaccinated on the basis of a prohibited ground? What information would employees be required to provide if their refusal is based on a medical condition? What if it is based on religion or political belief?
  • Now that many workplaces have experience with employees working from home, will employers be required to more readily grant requests to work from home as an accommodation for workers with disabilities or family obligations?
  • Will employer rules limiting where employees are permitted to travel for personal reasons be subject to challenge on the basis that they discriminate on the grounds of family status or place of origin?
  • In light of the massive economic downturn caused by the pandemic, are adjudicators more receptive to undue hardship arguments based on financial considerations?
  • What should workplace parties do to prepare for human rights issues that may arise as workplaces that were closed during the pandemic begin to reopen? Is there anything that workplaces that have remained open should start doing?

CONFERENCE ENDS

3:15 PM

Keynote Speakers


Tuesday, May 25, 2021



Day One – Mental Health Disabilities at Work: A practical guide for employers and unions

1:00 PM - 4:00 PM

Workshop leader & speakers:

Dr. Mike Condra
Adjunct Assistant Professor
Department of Psychology
Queen's University

Diane Laranja
Employer Counsel
Filion Wakely Thorup Angeletti LLP
Sonya Sabet-Rasekh
Staff Representative, Advocacy Department
British Columbia Government & Service Employees' Union

Workshop Summary

The human and economic toll of mental health disorders is staggering. American studies suggest that nearly one in two people will meet the criteria for a mental health disorder in their lifetime. In any given year, one in five Canadian adults will develop a serious mental health problem, and mental health problems are rated as one of the top three drivers of both short- and long-term disability claims by more than 80 percent of Canadian employers. Early evidence suggests that the COVID-19 pandemic has made the situation much worse; one recently published study found that since the onset of the pandemic, the percentage of Canadians reporting extremely high anxiety quadrupled, and nearly twice as many Canadians reported being depressed.

Managers, supervisors, union representatives, and other labour relations professionals will leave this session prepared to promote mental well-being in the workplace, support employees who are mentally unwell, and fulfill the legal obligation to accommodate employees experiencing mental health problems.

At the end of the workshop participants will be able to:

  • appreciate the difference between medical/psychological concepts of mental health, mental illness, and substance dependency, and the legal concept of mental disability
  • identify attitudes, language, and practices that perpetuate stigma
  • combat stigma in the workplace
  • approach employees about their mental health in a helpful, non-threatening way
  • support and accommodate employees with mental health disabilities

VIEW THE WORKSHOP AGENDA

Day Two – Mental Health Disabilities at Work: A practical guide for employers and unions

1:00 PM - 4:00 PM

Workshop leader & speakers:

Dr. Mike Condra
Adjunct Assistant Professor
Department of Psychology
Queen's University

Diane Laranja
Employer Counsel
Filion Wakely Thorup Angeletti LLP
Sonya Sabet-Rasekh
Staff Representative, Advocacy Department
British Columbia Government & Service Employees' Union

Workshop Summary

The human and economic toll of mental health disorders is staggering. American studies suggest that nearly one in two people will meet the criteria for a mental health disorder in their lifetime. In any given year, one in five Canadian adults will develop a serious mental health problem, and mental health problems are rated as one of the top three drivers of both short- and long-term disability claims by more than 80 percent of Canadian employers. Early evidence suggests that the COVID-19 pandemic has made the situation much worse; one recently published study found that since the onset of the pandemic, the percentage of Canadians reporting extremely high anxiety quadrupled, and nearly twice as many Canadians reported being depressed.

Managers, supervisors, union representatives, and other labour relations professionals will leave this session prepared to promote mental well-being in the workplace, support employees who are mentally unwell, and fulfill the legal obligation to accommodate employees experiencing mental health problems.

At the end of the workshop participants will be able to:

  • appreciate the difference between medical/psychological concepts of mental health, mental illness, and substance dependency, and the legal concept of mental disability
  • identify attitudes, language, and practices that perpetuate stigma
  • combat stigma in the workplace
  • approach employees about their mental health in a helpful, non-threatening way
  • support and accommodate employees with mental health disabilities

VIEW THE WORKSHOP AGENDA



CPD


Click here to find out more information regarding CPD and the hour requirements in your province.

Conference Sessions

  • Members of the Law Society of Ontario: 5.5 Substantive Hours; 1.25 Accredited EDI Professionalism Hours for Walking the Talk: Combatting systemic racism through everyday allyship (Panel 3).
  • Members of the Nova Scotia Barristers' Society may count this conference for 5.5 Continuing Professional Development Hours.
  • This conference has been approved by the Law Society of British Columbia for 5.5 Continuing Professional Development Hours.
  • This conference has been approved by CPHR Alberta for 5.5 Continuing Professional Development Hours.
  • This conference has been approved by CPHR BC & Yukon for 5.5 Continuing Professional Development Hours.
  • This conference has been approved for 5.5 Continuing Professional Development Hours under Section A3 of the Recertification Log of the Human Resources Professionals Association.
  • Members of the Law Society of New Brunswick may count this conference for. 5.5 Continuing Professional Development Hours.

Workshops

  • Members of the Law Society of Ontario: 5.5 Substantive Hours; 0 Professionalism Hours.
  • Members of the Nova Scotia Barristers' Society may count these workshops for 5.5 Continuing Professional Development Hours.
  • The workshops have been approved by the Law Society of British Columbia for 5.5 Continuing Professional Development Hours.
  • The workshops have been approved by CPHR Alberta for 5.5 Continuing Professional Development Hours.
  • The workshops have been approved by CPHR BC & Yukon for 5.5 Continuing Professional Development Hours.
  • This workshops have been approved for 5.5 Continuing Professional Development Hours under Section A3 of the Recertification Log of the Human Resources Professionals Association.
  • Members of the Law Society of New Brunswick may count these wrokshops for. 5.5 Continuing Professional Development Hours.