September 12, 2013
The duty to accommodate is likely the most common, and one of the most challenging, issues in the contemporary workplace. What are the basic steps that should be taken when an issue of accommodation arises? What action is required and what processes should be followed? What are the key ingredients of a successful accommodation? Using Lancaster House’s “Roadmap on Disability and the Duty to Accommodate in Canada,” this audio will walk participants through the basic steps involved at each stage of process, including identifying the need for accommodation, gathering the necessary information, investigating the options, and ultimately fulfilling, the duty to accommodate. The discussion will include:
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- Identifying the need for accommodation: What information does the employer need to have before the duty to accommodate is triggered?\nThe duty to inquire and the duty to disclose: What is the employer’s duty to inquire into an employee’s need for accommodation if it suspects the employee may require it on the basis of disability, religion, family status, or another ground? What is the effect of an employee not disclosing a need for accommodation, or of a delay in such disclosure?
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- Medical information and privacy: In the case of an employee with a disability, what is the scope of the medical information to which an employer is legally entitled for the purposes of accommodating an employee in productive work? Is a worker obligated to disclose his or her diagnosis, treatment or prognosis information to the employer? How should parties obtain and use this information in a way that balances the employer’s need for information with the employee’s privacy rights? Should the employer request a medical opinion from someone other than the employee’s treating physician? What information does an employee on leave need to provide in order to trigger the duty to accommodate a return to work?
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- Investigating accommodation options: 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? Must the employer meet with the employee to canvass possible accommodation solutions? If so, what should such meetings/discussions involve? What is the union’s role in the accommodation process and how should it participate? What right/obligation does an employee have to participate in the accommodation process? What consequences may flow if an employee is uncooperative? Will an employer be held liable for failing to properly consider all relevant information and consider possible accommodations even if, ultimately, accommodation would have constituted undue hardship?
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- Implementing accommodations/elements of a successful accommodation: To what extent is the employer required to consider the employee’s preferences in selecting from different accommodation options? What other factors is the employer required/entitled to consider in determining an appropriate accommodation? What are some examples of accommodations that should/must be considered? Modified work stations or physical environment? Modified job duties or hours? Bundling or reconfiguration of duties? Is transfer to a lower-rated or non-bargaining unit position permitted? If so, when can these options be considered? What are some examples of helpful accommodations for employees who are suffering adverse treatment on the basis of disability, religion, sex, family status, or age?
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- BFORs and undue hardship: What is a “bona fide occupational requirement” (BFOR) and how can workplace parties determine what elements of a job are bona fide occupational requirements? What is the test for establishing a BFOR and how/when is it met? Where does the concept of undue hardship fit in and when is the point of undue hardship reached? What criteria should be considered in determining undue hardship: Impact on health and safety? Decrease in productivity or morale? Seniority provisions? Cost? What role, if any, do last chance agreements play in determining “undue hardship” or bona fide occupational requirements?
