At what point is the duty to accommodate no longer necessary for an employer under human rights law?

| May 3rd, 2017 | 1 Comment »

Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground.  The most common grounds of discrimination within the workplace include religion, family status and disability. Other grounds of discrimination include race, colour, sexual orientation, age, sex, and others. Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground. The policy or job requirement does not have to overtly discriminate to be in violation. There simply needs only to be a discriminatory effect. The only exception is if the workplace policy or requirement qualifies as a ‘bona fide occupational requirement’ (BFOR). In order for a policy or workplace task to qualify as a BFOR, there are three points that must be satisfied that the courts have established. Below are each of the points along with an explanation as it relates to workplace policies or job requirements.

  1. The employer must show that the standard (policy/requirement) is rational in relation to the performance of the job.

This is a simple evaluation of whether the standard in question helps to fulfill a workplace goal. For instance, being able to lift 10 lbs. for an office worker may be required to access and retrieve large stacks of files. Having the requirement of being able to lift 10 lbs. in this case would qualify as a job requirement that rationally connects to the job.

  1. The standard in question must have been adopted in an honest and good faith belief that it is necessary to fulfil the work-related purpose.

The employer must also adopt the standard with the belief that it will fulfill a workplace goal or function. Maintaining the above example, the requirement of being able to lift 10 lbs. of weight for the purpose of retrieving needed work materials (such as large documents, files, etc.) would qualify as a good-faith measure. Being able to retrieve files on a regular basis that one is required to work with is a work-related purpose that would require someone to physically lift a minimal amount of weight.

  1. The standard in question must be reasonably necessary to accomplish the legitimate work-related purpose.

The final requirement is the most difficult to establish. In order to establish that the standard is reasonably necessary, employers must show that they would suffer ‘undue hardship’ by accommodating the individual. This step requires employers to explore alternatives that are less discriminatory and still accomplish the work related goal. Sticking with the above example, for a worker that cannot lift 10 lbs. due to disability, reasonable alternatives may include having other workers assist the worker when they are unable to lift the necessary documents/files, providing electronic files instead, or so on.

The idea is that it must be possible to accommodate the individual so that they can perform the essential duties required for their job. If this is not a possibility, then the employer has satisfied the requirements to establish the policy or work requirement is a BFOR. Typically, accommodation requires an employer to adjust working conditions so that the employee is able to perform the essential duties of the job. If the employer is unable to accommodate the employee to this point, then the burden of accommodation has been met.

Concluding Remarks:
Once a workplace standard is established as a BFOR, an employer is not required to accommodate. However, it is always advisable to explore alternatives to avoid unnecessary litigation. When exploring alternatives for accommodation it is essential that employers take an approach of good faith. This includes joint problem solving between the employee and considering doctor opinions if available. When in doubt, it is always best to seek the advice of an employment lawyer, as accommodation can present unique challenges that require legal expertise.

Medical Marijuana Use in a Safety Sensitive Workplace: Can an Employer Deny an Employee Use?

| March 13th, 2017 | No Comments »

Medical marijuana may be prescribed for several medical reasons. Under human rights law in Ontario, workers have a right not to be discriminated against on the grounds of ‘disability’ which encompasses illness. The use of medicinal marijuana in the workplace must be treated the same as any other prescription drug that a worker uses for a medical condition. In order to use medicinal marijuana in the workplace, the employee must provide medical documentation stating the nature of the disability (reason for use), and whether he/she is able to safely work while using medicinal marijuana while requesting accommodation.

Under human rights law, employers must accommodate an employee with a disability up to the point of ‘undue hardship’. In safety sensitive workplaces, accommodation may present increased challenges for employers. Under occupational health and safety law, workers cannot be a threat to their own safety or the safety of others within the workplace. An employer must, therefore, balance the duty to accommodate and the need to maintain a safe working environment.

There is no blanket standard that can be applied with regards to accommodation of medicinal marijuana use in safety sensitive workplaces. Each case must be examined in relation to the worker’s needs, the work duties and organization of work, and other factors that may have an effect on accommodation. For instance, the interconnectedness of work roles on an assembly line may present greater difficulties in terms of granting a worker the time needed to take prescribed usage of marijuana. If usage requires inhalation, then the worker must be relieved by another available worker that can perform the same role. This is because inhalation must be done in a designated smoking area. Accommodation efforts in this hypothetical may raise question such as: can other workers that can perform the same role be made available at all times? Can the marijuana be taken by ingestion with food while on the assembly line? Does being under the influence raise a health and safety concern? Can this worker be retrained for other similar roles that would alleviate potential health and safety and/or accommodation issues? With regards to the worker’s ability to perform the job duties without any concern for health and safety while under the influence, the worker’s physician must provide documentation showing that there are no issues.

The above was only one of many different scenarios that may arise. Employers are advised to have sufficient workplace policies with regards to prescription medication and workplace safety. This includes having procedures for reporting the use of medicinal marijuana and requesting accommodation, proper procedures for using medicinal marijuana when needed, and defining what is considered impairment with regards to health and safety matters. This is by no means a comprehensive guide. The consultation of an employment law expert should be sought so that unnecessary and costly future litigation is avoided for failing to accommodate up to ‘undue hardship’.

Should you accept a demotion due to your illness?

| October 2nd, 2015 | No Comments »

Question:

I was injured at work and subsequently diagnosed with an autoimmune disease, which my doctor says is likely related to the injury but not really provable.   My performance at work has suffered due to this disease, also because of absences due to hospital visits and the like.  I had never been written up before until my injury and now it seems like they are trying to get rid of me. They are essentially forcing me to step down from my management position or I feel like I will be fired.  As it stands now, I have actually agreed to step down, so it may be too late for me to do anything about it, but I feel that I was railroaded into this decision. 

Answer:

You are not required to accept a unilateral demotion, especially if the reason your performance has suffered is related to an illness.  Your employer is required to accommodate your autoimmune disease, and related absences, to the point of undue hardship.  Tell the employer you’ve changed your mind – you are no longer prepared to move into the new job; you want to be accommodated in your existing management position. If they refuse, call a lawyer or the human rights legal support centre.

Based on your individual needs, the experts can guide you step-by-step and provide thorough legal advice.

An Employer May Not Be Able to Accommodate Individuals with Disabilities

| November 25th, 2013 | No Comments »

An Employer’s Obligation to Accommodate Individuals with Disabilities

It is important to accommodate individuals with disabilities, but an employer’s obligation to accommodate cannot extend to what they do not know or what they cannot be reasonably expected to know.

An employee who alleges workplace discrimination on the basis of a disability, must have provided the employer with sufficient information about his or her disability to be successful in this claim. Such was the case in a recent proceeding at the Ontario Human Rights Tribunal (2013 HRTO 1635 (CanLII)).

Terminated on the Basis of a Disability

Heather Stewart, a project manager with the Ontario government, amongst other claims, alleged she was terminated in a manner contrary to the Ontario Human Rights Code because she was terminated on the basis of her disability.

Ms. Stewart admitted she had not revealed her disability to the employer, but claimed that her employer ought to have known about her disability and accommodated her accordingly. She claimed that her poor work performance was a result of a failure to accommodate.

The Tribunal rejected this argument. The Tribunal noted that an employer does not have an obligation under the Code to offer underperforming employees accommodation in the absence of a known or ought to be known disability. And that without clearer information, it was reasonable for the employer to have concluded that the poor performance was skill related and terminated based on this.

An Employer May Not be Able to Accommodate

The decision speaks to the shared responsibility of both employee and employer in managing requests for workplace accommodation. An employer may not be able to accommodate if an employee does not reveal their disability to them.

All situations are different, and the above is not to be taken in whole or in part as legal advice. For any questions about your particular situation, feel free to contact the lawyers at Whitten & Lublin.