KEY ISSUES IN HUMAN RIGHTS Duty to Accommodate

KEY ISSUES IN HUMAN RIGHTS “Duty to Accommodate – Basics” Presented by: Marino J. Sveinson James D. Kondopulos June 23, 2008 HEABC 15 th ANNUAL CONFERENCE Leading & Succeeding: Keeping Pace with the Changing Healthcare Workforce The purpose of this presentation is to provide information as to developments in and the state of the law. This presentation does not, in spite of efforts to provide a full and accurate analysis of the law, constitute a legal opinion. © Jennifer Perry, Marino J. Sveinson and James D. Kondopulos

British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin) ¢ B. C. government established minimum physical fitness standards – including an aerobic standard – for its forest firefighters ¢ Meiorin – a female fighter – failed to meet the aerobic standard, and was dismissed

Meiorin ¢ Most women, owing to physiological differences, have lower aerobic capacities than men ¢ No evidence that the aerobic standard was necessary for satisfactory performance of work

Three-Step Test ¢ Standard was adopted for a purpose rationally connected to the performance of a job ¢ Standard was adopted in an honest and good faith belief that it was necessary to the fulfilment of that legitimate workrelated purpose ¢ Standard is reasonably necessary to the accomplishment of that work-related purpose

BFOR ¢ To determine whether a prima facie discriminatory standard is, to use the language of the Code, a bona fide occupational requirement

Benchmarks ¢ Health care – setting standards may be found in benchmarks e. g. Care Aide l l Provides personal care to patients (assisting the patient with bathing, dressing and care of skin and hair); changes bed; assists with toilet needs; and oversees patient exercise routines Transports patients utilizing mechanical aids such as wheelchairs and/or stretchers

To Show that the Standard is “Reasonably Necessary” ¢ Employer has to demonstrate that “it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”

Duty to Accommodate ¢ Accommodation involves differential, highly individualized treatment ¢ Each case demands a subjective, fact -based assessment

Requires an Employer to: ¢ Learn about and carefully consider the capabilities and/or limitations of an individual employee (or class of employees) ¢ Thoroughly review the workplace and workplace standards to discern what modifications might be made to permit an individual employee (or class of employees) to work productively in the employer’s operation

Clear and Cogent Evidence of Undue Hardship is Required ¢ Generally not sufficient for an employer to provide anecdotal or impressionistic evidence regarding undue hardship

Assessing Undue Hardship The appraisal of undue hardship may consider the following non-exhaustive list of factors: l l l financial cost safety concerns disruption of a collective agreement morale problems of other employees interchangeability of the workforce and facilities size of the employer’s operation

The Players ¢ Discrimination in the workplace has been defined as “everybody’s business” and the search for accommodation is “a multi-party inquiry” requiring involvement of the employer, employee, union and co-workers

Union’s Duty Union’s duty to accommodate arises where the union is party to the discrimination: l caused or contributed to the discrimination by participating in the formulation of the standard l impeded reasonable efforts of the employer to accommodate

Impact on Co-Workers Primary concern of a union regarding the impact of a proposed accommodation: l the degree to which the proposed accommodation would adversely impact the rights of other employees and the collective agreement

Duties of Employee Also a duty on the employee seeking accommodation to assist in searching for an appropriate accommodation: l by seeking an accommodation from an employer l duty to facilitate the implementation of a reasonable accommodation proposal

Duties of Employee ¢ Providing sufficient medical information ¢ Duty to accept reasonable accommodation – cannot expect a perfect solution

Duties of Employer ¢ Duty to investigate a suspected disability ¢ Unexplained performance issues ¢ Erratic behaviour ¢ Cannot ignore observations that human beings are equipped to perceive ¢ Information received from someone other than the employee

Duties of Employer ¢ Duty to obtain details necessary to search for accommodation ¢ Seek medical information about nature of disability and restrictions ¢ Signs or symptoms of relapse?

Order of Search ¢ Employee’s position ¢ Other positions ¢ Other worksites

Non-Exhaustive Catalogue of Accommodation Efforts ¢ ¢ ¢ Altering the physical layout and/or setup of the workplace Providing adaptive equipment or technology Altering work schedules Providing part-time work as an alternative to full-time work Altering, removing, substituting and switching job duties Engineering changes

Accommodation Efforts ¢ ¢ ¢ Providing a training or trial period to permit the employee to take on duties he or she is capable of performing Permitting a certain degree of absenteeism Increasing the number of permitted sick days Allowing leaves of absence Obtaining temporary replacements to accommodate frequent or extended periods of absence Allowing compressed work schedules

Accommodation Efforts ¢ Bundling duties to create a position? ¢ Must be a productive position ¢ Bumping an incumbent? ¢ Collective agreement provisions related to seniority, job postings, promotions?

If Offer of Accommodation is Refused ¢ Employee not entitled to “perfect” accommodation ¢ Employer may offer one of several options; employee not entitled to preference as long as reasonable accommodation ¢ Onus on employee or the union to explain or justify reason for refusal

Procedural Considerations ¢ Numerous cases highlight important procedural aspects of the accommodation exercise ¢ Employer’s decision that accommodation is impossible short of undue hardship may be correct BUT … ¢ Employee may still receive damages if proper process not followed

Gordy v. Oak Bay Marine Management Ltd. , 2004 BCHRT 225 ¢ Detailed roadmap of how an employer must analyze its duty to accommodate ¢ Must apply a process of thought and analysis AT THE TIME THE DECISION IS MADE in order to PROVE that accommodation is impossible ¢ Onus is on the employer to prove inability to accommodate as part of BFOR defence

Gordy ¢ ¢ Employer’s duty to accommodate the return-to -work of a seasonal remote waters guide who suffered from bi-polar disorder Last decision in a string of decisions: l l 2000 BCHRT 16: Employee’s complaint upheld [2000] B. C. J. No. 2504 (S. C. ): Employer’s judicial review petition upheld and complaint set aside 2002 BCCA 495: Court of Appeal remits case to the Tribunal 2004 BCHRT 225: Employee’s complaint upheld with 241 paragraphs of reasons!

Gordy ¢ Employer ignored optimism of employee’s doctor, based on Gordy's previous failed attempt to return to work and its “impression” of risk ¢ Tribunal concluded that the employer conducted none of the analysis required to prove that it was right ¢ Adjudicators will ask: l Did you investigate alternative approaches that do not have a discriminatory effect (at the time of your decision)? l Did you correctly decide whethere was a way to meet your objectives in a way that is less discriminatory (at the time of your decision)? l What process did you use to analyze the issue and reach conclusions (at the time of your decision)?

Gordy ¢ You must design a PROCESS under which you will INVESTIGATE accommodation options and JUSTIFY your decision to accept or reject the options ¢ You must be able to point to each aspect of the process in evidence to prove that you discharged your duty to accommodate ¢ Obtain wherever possible detailed EXPERT evidence or advice about your options

Gordy ¢ Employers often need: l l ¢ detailed MEDICAL information about the specific limitations on the employee’s ability to perform work, including limitations on physical and cognitive abilities general MEDICAL information about the disease at issue Consider “all” possible modifications to the job duties or work, including: l l modifications to employee’s own job duties scheduling changes reconfiguring work – i. e. is there a job or work the employee can perform productively in the workplace? reassigning the employee

Gordy ¢ Analyze undue hardship in the context of your enterprise: l l l l size scheduling pressures customer or public relations profitability nature of operations regulatory and legal framework your existing experience with the employee in question or similar accommodation challenges in the past – i. e. what do you already know?

Some Advice for Employers ¢ Build an understanding and gather information ¢ Make detailed inquiries and investigations ¢ Communicate openly, honestly, directly, compassionately and amicably ¢ Remember the search for accommodation is a multi-party inquiry

Advice for Employers ¢ Remember employers have the right to operate productively, efficiently and profitably ¢ Gather clear and cogent evidence of undue hardship that would be experienced ¢ Gather expert evidence on excessive financial cost associated with accommodation ¢ Consider risks to the safety of the employee, to fellow employees and to the public ¢ Document the entire process

Duty to Accommodate – Some Specific Issues ¢ Mental Illness ¢ Addicted Employees ¢ Disabled Employees l l Getting medical information Dealing with “fakers” ¢ Family Status ¢ Defining the “Duty to Accommodate”

Accommodating Mental Illness ¢ “Mental illness” includes a broad range of psychiatric disorders including: l l l l depression bipolar disorder schizophrenia P. T. S. D. panic and anxiety attacks caused by work-related stress migraines kleptomania low IQ ¢ May be more difficult to identify and determine appropriate accommodation ¢ Balancing duty to accommodate with patient safety

Shuswap Lake General Hospital v. BCNU (Lockie Grievance), [2002] B. C. C. A. A. A. No. 21 (Gordon) ¢ Grievor hired as RN in 1994 and diagnosed with bi-polar effective disorder in 1997 ¢ Disorder caused episodes of mania where mood swings occurred and resulted in emotional breakdown ¢ Grievor took time off to recover and received medical treatment

Shuswap ¢ In 1999, the grievor made three serious medical errors ¢ Grievor went off on sick leave and was fit to return to work in early 2000 ¢ In April 2000, the grievor had another breakdown triggered by the condition of one of her patients ¢ Employer sought assurance from physician that grievor “could meet her standards of practice on a consistent basis”

Shuswap ¢ Grievor’s physician explained that due to the nature of bi-polar disorder it was impossible to predict future relapses ¢ Employer determined it could not accommodate the grievor without undue hardship and terminated her employment

Shuswap ¢ At arbitration, the grievor was reinstated on the following conditions: l Regularly attend her treating physicians and report all signs of relapse to them l Comply with medical caregivers’ testing, monitoring, treatment and medication recommendations

Shuswap ¢ ¢ ¢ Staff advised of nature of her disorder and signs of relapse Work schedule to be predictable – no nights and no excessive overtime Husband physician authorized to report signs of relapse to manager Managers and supervisors to monitor her condition Prepare report of indicators of relapse and provide to manager

Shuswap ¢ ¢ ¢ Schedule predictable routine shifts Educational workshop for staff Facilitated discussion of co-workers concerns Procedure to report deterioration or relapse Tolerate absences Reporting mechanism to monitor grievor’s condition

Accommodating Addiction ¢ ¢ Addictions are diseases that must be accommodated to the point of undue hardship Negative behaviour caused by addiction (absenteeism) must be treated non-culpably Negative behaviour unrelated to addiction (fight) may be treated with discipline Fraser Lake Sawmills sets out the analysis applicable to “hybrid” situations where the causal connection is unclear

Accommodating Addiction ¢ Employers may be required to accommodate addicted employees by: adjusting shifts to enable rehabilitation l providing leaves of absence l arranging for counselling or rehabilitation l repeatedly offering support l tolerating absenteeism l providing workplace education to manage morale l paying for reinstatement and monitoring l altering duties or reassigning worker l tolerating relapse l

Health Employers Assn. of British Columbia v. British Columbia Nurses’ Union, [2006] B. C. J. No. 262 (C. A. ) ¢ ¢ ¢ ¢ Grievor was an addicted nurse He had previously worked at another hospital from which he had twice been fired for addiction-related behaviour After each termination, he had been reinstated on a last chance agreement Grievor’s employment was terminated by his new employer Grievor claimed that the employer had failed to accommodate him Arbitrator held that the employer failed to accommodate the grievor – it should have explored the possibility of finding him a job that did not provide access to drugs Termination was overturned

Health Employers Assn. of British Columbia ¢ Employer appealed to the B. C. Court of Appeal ¢ Fraser Lake Sawmills analysis was applied: “Where the addiction [is] found to have no causal link to the misconduct, the misconduct should be treated as culpable, and therefore appropriate to a ‘just cause for dismissal’ analysis in the labour law context. Where the addiction [is] the sole cause of the misconduct, it [is] to be regarded as non-culpable, and therefore subject to the discrimination accommodation analysis in the human rights context. But where the addiction and voluntary behaviour [are] joint causes of the misconduct it [is] to be treated as a hybrid case. ”

Health Employers Assn. of British Columbia ¢ Court of Appeal held that “accommodation must be approached with basic notions of balance, flexibility and common sense” and noted that nurses are employed in positions where public safety is of the utmost importance ¢ Court of Appeal held that the arbitrator erred in failing to consider: l l l grievor’s duty to facilitate the accommodation grievor had twice been returned to work and then relapsed grievor had repeatedly failed to cope with his addiction or take responsibility for his rehabilitation ¢ Court of Appeal held that the employer had not breached its duty to accommodate the grievor ¢ Termination decision was restored

Substantiating Disability ¢ Employers are entitled to medical information so that they can assess the legitimacy of a leave, administer benefits and consider accommodation ¢ “Worker off sick” notes are common but unacceptable ¢ Employer’s right to information is balanced by privacy considerations

Medical Notes This is to advise that the patient has chronic back problems. I recommend that she work only day shifts. Dr. Smith

Employer’s Rights ¢ Employer are entitled to question medical notes and seek clarifications or additional information, with some limits ¢ Onus is on the employee to provide sufficient medical information to justify her entitlement to leave, accommodation etc. ¢ Request for medical information cannot be inconsistent with the collective agreement and must be “reasonable”

Reasonable Requests Employers may request: l l nature of illness or injury employee’s expected return-to-work possible limitations on duties or hours of work whether the employee is following a treatment plan • employers may make other case-specific inquiries to establish entitlement to sick leave and the employer’s ability to accommodate an employee upon return to work

Reasonable Limits ¢ Employers are generally not entitled to: l l l specific diagnosis know the kind of treatment the employee is receiving require an independent medical examination know whethere are non-medical barriers to the recovery secure reports from the employee’s doctor or access the employee’s medical records contact the employee’s physician directly

Two Cautionary Points l Privacy legislation generally precludes employers from disclosing medical information to third parties without employee consent l Workers Compensation Act prevents employers from using WCB information for other purposes without an order of a decision-maker

Dealing with “Fakers” ¢ Sometimes, employers doubt the legitimacy of an employee’s medical leave ¢ Be careful before asserting benefits fraud ¢ Must provide “clear, cogent and convincing” evidence that the employee deliberately attempted to improperly obtain benefits ¢ Employers who fall short of that high mark are exposed to additional liability

Re Teck Cominco Metals Ltd. and USWA, Loc. 480 (2005), 141 L. A. C. (4 th) 97 (Sullivan) ¢ ¢ ¢ 28 -year employee requested family responsibility leave but failed to justify the leave – the request was refused Employee left work mid-shift, claiming “stress” At an investigation meeting, the employer learned that the employee had taken his wife to a U. S. casino Employment was terminated Employee produced a doctor’s note saying he was on sick leave for depression; employee’s doctor also claimed that the employee was “totally incapacitated”

Re Teck Cominco Metals Ltd. ¢ Termination was upheld ¢ Arbitrator concluded that: l Grievor did not have any disability l Long service was outweighed by his: • serious misconduct • manipulation of the doctor • attempts to mislead the arbitrator • lack of remorse • calculated attempt to perpetrate fraud • retaliatory and offensive behaviour

Accommodating Family Status ¢ Discrimination on the basis of family status has been given a broad interpretation: l ¢ practices or attitudes which have the effect of limiting the employment conditions of or employment opportunities available to employees on the basis of a characteristic relating to their family This interpretation is expanding

Health Sciences Assoc. of B. C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 “If the term ‘family status’ is not elusive of definition, the definition lies somewhere between the two extremes urged by the parties. Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case. In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee. I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case. ”

Campbell River and North Island Transition Society ¢ B. C. Court of Appeal’s test is very general ¢ Many aspects must be clarified: l l whether prima facie discrimination can arise from a change in an employee’s personal circumstances rather than a change in a term of employment what constitutes a “serious” interference and a “substantial” family obligation whether “serious” and “substantial” are to be assessed on a subjective, objective or “hybrid” basis the scope of relationships to which this test applies

Campbell River and North Island Transition Society l l Meaning of the statement that it will be difficult to make out a prima facie case of discrimination in the “vast majority of situations in which there is a conflict between a work requirement and a family obligation” Impact, if any, of a finding that an employer engaged in bad faith Impact, if any, of a governing provision in a collective agreement or employment contract How this test will be applied to cases of alleged discrimination on the basis of family status in relation to: • • discriminatory publication discrimination in accommodation, service and facility discrimination in tenancy premises discrimination by unions and associations

Campbell River and North Island Transition Society ¢ Implications for employers: l Employers must accommodate their employees’ family obligations to the point of undue hardship l Accommodation claims are most likely when employees are seeking: • preferential shift schedules • extra-contractual leave to attend to family obligations • preferential holiday schedules

Defining the “Duty to Accommodate” ¢ Inquiry into the duty to accommodate must be individualized ¢ Employers cannot blindly apply a uniform policy ¢ However, collective agreement terms can help define the duty and what would constitute undue hardship