March 07, 2013

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, cancer, HIV and arthritis, 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. In this session a panel of experts will discuss these challenges and the following issues:

    • Episodic disabilities generally: Why might it be helpful to categorize certain disabilities as ‘episodic’? What are the characteristics of some common episodic disabilities? What are the unique challenges in accommodating these disabilities?
    • 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? 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? Are attendance management plans helpful tools that identify employees with episodic disabilities? Or are they a form of discrimination against such employees?
    • Accommodation: What medical information is an employer entitled to request as part of the accommodation request? Must employees with episodic disabilities continually update their employers about their condition? If so, what information must employees disclose? Are they required to disclose their prognoses, treatment plans, compliance with/efficacy of treatment? What types of accommodations are generally helpful to employees with episodic disabilities (e.g. flex time, working from home, etc)? Is it discriminatory to offer a full-time employee part-time work as an accommodation or not to agree to it when an employee has requested part-time work as an accommodation?
    • Undue hardship: 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? What inquiries regarding an employee’s ability to work or return to work must an employer make prior to dismissing an employee with an episodic disability for innocent absenteeism?
    • Communication during absences: What should employers do to maintain communication with employees absent from work for an episode of disability? What is the difference between maintaining appropriate contact to receive medical information necessary to assess accommodation options and harassing an employee? What responsibility do employees have to keep the lines of communication open with both employers and unions? What information must an employee provide to initiate a return to work with accommodations? Do unions breach their duty of fair representation if they do not maintain communication with members regarding their fitness to work, possible accommodations and return to work?