Creativity, Reality, & Practicality:The duty to accommodate personswith disabilities in the workplace

Murphy Battista LLP

Vancouver, BC

Main: 604-683-9621

Toll Free: 1-888-683-9621

Dianna RobertsonOccupational Therapist Lawyer

What is Accommodation?

The Concept Equality concept that

seeks to build inclusive environments that respect the differences and the rights of a diverse society

http://www.bchrcoalition.org/files/faq_DTA.html

The Goal Seeks to eliminate

barriers, standards, requirements, practices, policies and rules that adversely affect people on the basis of specific grounds

Duty to Accommodate - Sources

Statute BC Human Rights Code

– not mentioned Canadian Human Rights

Act – mentioned

Case Law Supreme Court of

Canada Cases – mentioned

BC Supreme Court Cases – mentioned

What the law says:

Where a barrier exists, or a policy or practice has adverse consequences on an individual in a protected group, the law says that the employer should reasonably accommodate that individual’s difference provided they can do so, without incurring undue hardship, or without sacrificing a bona fide or good faith requirement of the job.

http://www.bchrcoalition.org/files/faq_DTA.html

Accommodation Protection For:

Race Colour Ancestry Place of origin Age Sex Physical or mental

disability

Sexual orientation Religion, marital or family

status Political belief Criminal convictions

unrelated to employment

Duty to Accommodate:Most often applies to persons with disabilities

Examples: Removing physical

barriers Computer Screen

Reader Work Station

Ergonomics

screen reader reference:https://www.google.ca/search?q=computer+screen+reader+for+the+blind&biw=1225&bih=787&source=lnms&tbm=isch&sa=X&ved=0CAYQ_AUoAWoVChMI0LH2-NjqxgIVxSyICh0vfA6R#imgrc=jmLgw5sMF9zjcM%3A

Limits to Accommodation:

Undue Hardship Bona Fide Occupational

Requirements Conflicting Rights

Undue Hardship:

Accommodation efforts must go to the point of undue hardship

Factors Considered: financial costs health and safety risks size and flexibility of the

workplace

Bona Fide Occupational Requirements:1. Employer must show:

Rule adopted for a purpose rationally connected to performance of job

2. Employer must show:

The rule was adopted in good faith in belief it was necessary for fulfillment of legitimate work related purpose Why was rule developed? When and by whom? What process used?

Bona Fide Occupational Requirements:

3. Employer must show: The rule is reasonably necessary to accomplish legitimate work related purpose

Employer must still carefully consider all reasonable options for accommodation

Bona Fide Occupational Requirements:

Bona Fide Occupational Requirements?

Conflicting Rights:

Can’t replace discrimination of one person with discrimination against others

Can’t significantly interfere with rights of others

Meiorin 1999 Supreme

Court of Canada Case

Case Example:

Grismar 1999 Supreme

Court of Canada Case

Case Example:

Case Example:

Youth Bowling Counsel of Ontario vs. McLeod 1994 Ontario Case

bowling aid reference: https://www.google.ca/search?q=good+faith&biw=1225&bih=787&source=lnms&tbm=isch&sa=X&ved=0CAYQ_AUoAWoVChMIodnh493qxgIVRFuICh0rnQ80#tbm=isch&q=disabled+bowling&imgrc=Nf-tK6hkLO8dXM%3A

Guidance for Employers: Establish accommodation process

that respects the dignity and the privacy

Consider and facilitate the process of accommodation once request made

Determine if a particular request is based on a protected ground of discrimination

Confirm and secure additional relevant information necessary to assess the accommodation requirements

Ensure an inclusive process that allows for multi-party participation

Involve person seeking accommodation

http://www.bchrcoalition.org/files/faq_DTA.html

Consider and assess each accommodation request on an individual basis

Be prepared to bear the cost of required medical information or other documentation

Be willing to take substantial and meaningful measures

Be flexible and creative. Aim towards identifying the best option suited to the needs of the individual, while respecting the privacy, the autonomy, and the integration of the individual;

Reply to requests in a reasonable time period and keep records of all actions taken

Where possible, advise or inform your employer of your need for an accommodation

Provide sufficient information as to why the accommodation is required

Support your request by providing evidence and / or information

make suggestions that would work for you (ie. a specific adaptive software or hardware device, extra sick days to allow for increased illness during pregnancy, etc.)

how long the accommodation is required

http://www.bchrcoalition.org/files/faq_DTA.html

Allow a reasonable amount of time for your employer to reply or respond

Always participate and cooperate in efforts to make the accommodation work

Be flexible – perfect

If your requirements change, make sure you let management know

If a solution is offered and you accept it, get it in writing

If the process loses momentum, provide additional information that may help re-activate it

If your employer claims they are unable to fulfill your request, ask for written details that explain the decision

Guidance for Employers:

Reasonablevs.

Perfect Solution

Our Case Study:

Finding the “just right” accommodation

Job Profile:

Housekeeper/ Maid at Remote Fishing and Hunting Lodge

Office and Front Reception Full time hours Room and Board Included

Worker Profile

Chronic low back pain from chair accident Narcoleptic Vegan Celiac Disease Young offender B & E

Employer Profile

Family run “mom & pop” business 3 employees Limited finances No accommodation policy Require that all employees eat meat caught by guests

Employee is Seeking Accommodations:

Dietary – Gluten Free Vegan Diet Ergonomic Chair Tempurpedic Bed Split shift to allow for napping

Further Questions?

Dianna Robertson, MScOT, JD dr@murphybattista.com

Direct: 604-633-3809

Main: 604-683-9621

Toll Free: 1-888-683-9621