February 15, 2018

The extensive caselaw generated by courts, arbitrators and human rights tribunals on the topic of workplace disability accommodation demonstrates that parties frequently disagree on relatively straightforward matters such as obtaining adequate medical information, assessing whether an accommodation is suitable, and determining whether the point of undue hardship has been reached. While new and complex issues continue to emerge, employers and unions can meet most challenges that arise provided they have a good understanding of the fundamentals. In this session, legal experts will guide you through the essential elements that must be considered when accommodating mental and physical disabilities in the workplace, and a medical expert will provide insight into the physician’s role in the process. Topics to be addressed include:

  • The duty to inquire and the duty to disclose: What information does the employer need to have before the duty to accommodate is triggered? Does the employer have a duty to make inquiries where it suspects that an employee might have a physical or mental condition that requires accommodations? Does the union bear a similar duty? What is the legal impact of an employee’s failure to disclose a need for accommodation until discipline has been threatened or imposed?
  • Obtaining medical information: What is the proper role of the medical practitioner in the accommodation process? What type of medical information should a physician be providing to an employer in order to facilitate accommodation of a physical or mental disability? Are there certain types of medical assessments that can be done to identify an employee’s physical or mental health restrictions? What medical information is an employer legally entitled to request for the purpose of accommodating an employee? How should employers and unions balance the need for medical information against the privacy rights of employees in the accommodation process? What is the best way for unions and employers to engage medical professionals in the accommodation process?
  • Identifying suitable accommodations: What steps should employers follow in identifying and evaluating options for accommodation? What is the union’s role in the accommodation process? Does the employee have a right or obligation to participate in the process? Does the union have a right to participate at every step? Are there standard recovery times for certain types of illnesses? If so, should employers be relying on such standards to return an accommodated employee to his or her regular duties? What factors may cause a patient to deviate from standard recovery times?
  • Bona fide occupational requirements and undue hardship: What is a “bona fide occupational requirement” (BFOR)? How can the parties determine whether a standard, factor, requirement or rule is a BFOR? At what point can an employer establish that it has accommodated the employee to the point of undue hardship? What role does a last chance agreement play in establishing undue hardship? Is there a separate procedural component of the duty to accommodate that can be independently breached and attract remedies, even though the employer establishes that it is unable to accommodate a disability without undue hardship?