Presented by:

Marino J. SveinsonJames D. Kondopulos

June 23, 2008HEABC 15th ANNUAL CONFERENCELeading & Succeeding: Keeping Pace with the Changing Healthcare Workforce

KEY ISSUES IN HUMAN RIGHTS

“Duty to Accommodate – Basics”

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 fightfighter – 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 work-related 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

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:

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:

caused or contributed to the discrimination by participating in the formulation of the standard

impeded reasonable efforts of the employer to accommodate

Impact on Co-Workers

Primary concern of a union regarding the impact of a proposed accommodation:

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:

by seeking an accommodation from an employer

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: 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: Did you investigate alternative approaches that do not

have a discriminatory effect (at the time of your decision)? Did you correctly decide whether there was a way to meet

your objectives in a way that is less discriminatory (at the time of your decision)?

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: 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: 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:

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 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: 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:

Regularly attend her treating physicians and report all signs of relapse to them

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 and 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 rehabilitationproviding leaves of absencearranging for counselling or rehabilitation repeatedly offering support tolerating absenteeismproviding workplace education to manage

moralepaying for reinstatement and monitoringaltering duties or reassigning worker tolerating relapse

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: 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:

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:

specific diagnosis know the kind of treatment the employee is

receiving require an independent medical examination know whether there 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

Privacy legislation generally precludes employers from disclosing medical information to third parties without employee consent

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. (4th) 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: Grievor did not have any disability 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:

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:

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

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:Employers must accommodate their

employees’ family obligations to the point of undue hardship

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