May 22, 2014

The most difficult accommodation situations involve the challenge of accommodating multiple employees at the same time. What criteria should employers use to referee competing accommodation requests, or competing rights? What policies should be put in place to reduce the potential for conflict? What should unions do to assist? In this session a panel of experts will address these and other questions relating to competing accommodation requests, including:

  • The duty to accommodate – the basics: What are the key steps that should be taken when an issue of accommodation arises? When is the duty to accommodate triggered? What is the employer’s duty to inquire into an employee’s need for accommodation if it suspects the employee may require it? What is the effect of an employee not disclosing a need for accommodation, or of a delay in such disclosure? What are the steps that should be taken by employers, employees and unions to investigate and consider the availability of accommodation options? What process should be followed? What are some examples of accommodations that should be considered? How can workplace parties determine what elements of a job are bona fide occupational requirements? What is the test for establishing a BFOR and when is it met? When is the point of undue hardship reached? What criteria should be considered in determining undue hardship?
  • Competing accommodation requests: It can be challenging for employers to accommodate multiple employees at the same time. What happens when an employer receives competing accommodation requests from employees? How should an employer referee such requests? By seniority? By the severity of the disability/protected ground? By the reason for the accommodation request? What should employers do to reconcile competing rights and reduce the potential for conflict? What process should be followed? Should employers have a competing rights policy in place? What can unions do to assist? Have arbitrators offered any guidance for these kinds of situations?
  • Is there such a thing as an accommodation “tipping point”? What happens when an employer argues that it is so “saturated” with workers on accommodation-based restrictions that it is “at the tipping point” and cannot accommodate even one more worker? What would an employer need to demonstrate to prove that the “saturation” level is such that to accommodate another employer would result in undue hardship? What kind of evidence will an employer need to demonstrate the consequences of additional accommodation? Health and safety considerations? Financial cost? Impact on collective agreement? Morale? Seniority provisions? A combination? What are the difficulties of proving saturation to the point of undue hardship? Would it be more challenging for a large employer to make this argument, where potential bundling opportunities or positions in other departments may be available?