Human Rights in the Workplace Duty to Accommodate

Transcription

1 Human Rights in the Workplace Duty to Accommodate CAHRMA April 16, 2015 Presenter: Sushila Samy, CHRP

2 Learning Objectives Participants will gain an understanding of: Duty to Accommodate Bona Fide Occupational Requirement (BFOR) Undue Hardship

3 The Alberta Human Rights Act Is primacy legislation - takes precedence over other provincial laws Recognition that all persons in Alberta are equal in dignity, rights and responsibilities

4 Protected Areas - Alberta Publications, notices, signs, symbols, emblems and other representations Goods, services, accommodation or facilities Tenancy Employment practices Employment applications & advertisements Membership in trade unions, employers organizations or occupational associations

5 Protected Grounds - Alberta Race Religious belief Colour Gender Physical Disability Mental Disability Marital Status Age Ancestry Place of Origin Family Status Source of Income Sexual Orientation

6 Canadian Human Rights Act Race Religion Colour National/ethnic origin Sex Disability Age Marital Status Family Status Sexual Orientation Conviction for an offence for which a pardon has been granted

7 Prohibitions Retaliation against anyone who has made a complaint, given evidence or assisted any one else in making a complaint Making a complaint with malicious intent that is frivolous and vexatious

8 Key Concepts in Accommodation Grounds of Discrimination Bona Fide Occupational Requirements (BFOR) Undue Hardship

9 Accommodation Accommodation means making changes to certain rules, standards, policies, and physical environments to ensure that they do not have a negative effect on employees because of their religion, disability, gender, or any of the other protected grounds

10 Accommodation Accommodation is a way to balance the diverse needs of individuals and groups in our society. It may require a degree of inconvenience, disruption and expense Accommodating the individual needs of a person is not a nicety or a courtesy: it is the law

11 Examples of Accommodation Transfer of employee to a different job Allowing employee to work part-time hours; full time hours; flex time To allow time off for medical appointments Offering rehabilitation programs to an employee or allowing time off for rehabilitation Tolerating some degree of absenteeism

12 Accommodation Discussion Accommodation needs to be seen as a partnership between the employee and the employer Both have responsibility to ensure that the best option for accommodation is reached and maintained

13 The Accommodation Discussion A decision making process that is collaborative in which the employer and employee both have a share Consider all options Document the process

14 Medical Evidence is Crucial When requesting accommodation an employee should provide the employer with medical evidence supporting the accommodation request of the functional limitations they have to perform the job Refer to information sheet Obtaining and responding to medical information in the workplace: A summary for employers (October 2009)

15 Requesting Relevant Medical Information Must be requested in non threatening manner Medical information should only be released to staff who need it for a specific purpose Trick v. Federated Cooperatives (Alta. Q.B.)

16 Bona Fide Occupational Requirement (BFOR) A bona fide occupational requirement (BFOR) is a standard or rule that is a necessary requirement in carrying out the functions of a specific position

17 Meiorin Test 1. Is the purpose of the standard or policy rationally connected to performance of the job? 2. Was the standard or policy adopted by the employer in an honest and good faith belief that it is necessary to the job? 3. Is the standard or policy reasonably necessary and the employee s needs cannot be accommodated without imposing undue hardship on the employer?

18 Meiorin Test Questions to consider for 1 st part of test: What is the purpose of the standard or policy? Is it safety, efficiency, other? What are the objective requirements of the job? Is there a rationale connection between the general purpose of the standard and the objective requirements of the job?

19 Meiorin Test Questions to consider for 2 nd part of test: a. What are the circumstances surrounding the adoption of the standard or policy? b. When was the standard or policy created? By whom? Why was it created? c. What other considerations were included in the development of the standard or policy?

20 Meiorin Test Questions to consider for 3 rd part of test: a. Was there accommodation to the point of undue hardship? b. Was the standard or policy based on assumptions about a particular group? c. Is there evidence that the standard or policy treats a particular group more negatively than another with apparent justification?

21 An individual s right to be treated in a nondiscriminatory manner and be afforded accommodation to achieve equal opportunity must be balanced against the employer s right to conduct business in a safe and cost-effective manner. To achieve this balance the law has introduced the concept of accommodation up to undue hardship

22 Undue Hardship The Supreme Court of Canada has ruled that the employer s hardship must be substantial in nature. Some hardship may be necessary To substantiate undue hardship, an employer must show that they would experience more than a minor convenience

23 What is Undue Hardship? Undue hardship occurs if accommodation would create onerous conditions for an employer or service provider, for example, intolerable financial costs or serious disruption to business

24 Undue Hardship A few considerations are: Financial costs Health and safety concerns Size and resources of employer Morale of other employees Interference with rights of others Interchangeability of workforce & facilities

25 Assessing Undue Hardship Questions to consider: a. Do all employees have to meet one standard? b. Is there another way to do the job that would get around the standard? c. Were alternatives considered? If there were alternatives, why were they not chosen? d. Have other employees/union been consulted?

26 Role of the Employee To inform the employer what the needs are To be willing to submit documentation that corroborates the nature of the accommodation required To suggest accommodation options they know of that will meet those needs

27 Role of the Employee To participate in the discussion and give feedback on any accommodation agreed upon by both parties To consider any reasonable accommodation options that the employer offers

28 Role of the Employer To be willing to accommodate To listen and try to understand the employee s needs To involve the employee in the decision making

29 Role of the Employer To request medical documentation that identifies the employee s limitations and the type of accommodation requested To explore all the options for accommodation

30 Conclusion Accommodation needs to be taken into consideration in: Hiring practices interviewing, selection Assignments and work procedures Orienting existing staff to an individual s accommodation needs, as necessary Planning of meetings, social events

31 Information Information Sheets and Bulletins on the topics presented today can be found at and can be downloaded Tribunal and court decisions can be accessed free of charge at

32 For information on the presentation Call Toll Free - dial and the phone number or Visit our website at