Human Rights in the
SAFE Workplace
Simon Gillingham
Workplace Consultant
City of Winnipeg
# 986-4494
Worker Rights
• Every worker has the following rights:
Right to Know
•♦ Right to Participate
•♦ Right to Refuse
•♦
COMPETING RIGHTS
• Human Rights Legislation
• Paramount Status
• To be interpreted broadly
• Can’t contract out of Human Rights
Edmonton police set to unveil
official hijab that Muslim officers
can wear on duty
SOURCE National Post
Legal Basis
• The Human Rights Code –
13, 14, 9 (1)(d), 9(2), 12
• Court and Tribunal Decisions –
“Meiorin”
• Employment
• Services
Who is responsible for
work accommodations?
**Employer**
Employee
Union
Protected Characteristics?
•
•
•
•
•
•
•
•
•
•
•
•
•
ancestry, including colour and perceived race
nationality or national origin
ethnic background or origin
religion or creed, religious belief, religious association or
activity
age
sex, including pregnancy, the possibility of or circumstances
related to pregnancy
gender-determined characteristics or circumstances other than those
included under ‘sex’
sexual orientation
marital or family status
source of income
political belief, association or activity
physical, or mental disability including reliance on a dog guide
or other animal assistant, a wheelchair or any other remedial
appliance or device
New as of June 2012 : Gender Identity and Social Status
Pregnant or nursing workers
• must be informed of any risk that conditions in
the workplace may pose to them or their unborn
or nursing child.
• Where it is reasonably practicable an employer
must take steps to minimize the exposure, or
if alternate work is available that involves no
risk or less risk, assign the worker temporarily
to that alternative work.
General Principles
•
•
•
•
•
•
Respect for dignity
Individualization
Inclusion
Trial & Error
Dignity of Risk
ALL ASPECTS !!
In Practice
Proactive
Reactive
!
PROACTIVE
• WELLNESS PROGRAMS
• FITNESS PASSES FOR EMPLOYEES ON LTD
• INCLUDE LTD EMPLOYEES IN TRAINING/
WORK EVENTS
• JOB STRENGTHING COACH
• ENCOURAGE WORK HARDENING PROGRAM
BEFORE RETURN TO WORK
• GRACE PERIOD FOR PERFORMANCE
“Employment” broadly defined
“any
aspect of an employment or occupation"
Changes required
at work?
•
•
•
•
physical workspace, computer software
job expectations, requirements, quotas
scope of work , bundling
hours of work, varied, PT
Challenges
•
•
•
•
•
•
•
Defining Undue hardship is elusive
Assessments must be individualized
Medical information & privacy issues
Employee can refuse to provide medical
Cannot require employee to see physician
Verifiable evidence vs. impressionistic
Inconvenience not Undue Hardship
Mental Health ISSUES
• Depression most frequent disability
[2020]
• 1 in 4 Manitobans will have MH illness
• Anxiety
• Stress – claims Supervisor is cause
• Employee not cognizant
• Stigma
• Culpable versus non-culpable
Drug & Alcohol Testing
• Supreme Court decision 2013
• Only test for cause
• Post incident
• Record as near miss and/or incident
• Pre-employment testing?
• Treat addiction as disability
DUTY TO INQUIRE
•Onus on Employer to inquire
•Duty to act
•Addictions
•Mitigating factors in discipline
hearings
•Fact versus assumptions
Dignity of Risk
•
•
•
•
•
•
•
•
Right to make decision
Acceptable personal risk
No undue risk to other employees
No undue risk to public
Workers Comp No-Fault insurance
No guarantee of absolute safety
Verifiable vs. impressionistic
Inherent to the job
In Meiorin vs. British Columbia (British
Columbia (Public Service Employee
Relations Commission) v. BCGSEU,
[1999] 3 S.C.R.) the Supreme Court
referred to two inquiries to consider
with respect to accommodation:
(a) the procedure adopted by
the employer to assess the
issue of accommodation;
and
(b) (b) the substantive content
of any accommodation
offered
[Liability attached to both!!]
Searching for
an accommodated position
Changes required
in a WORK environment?
• Physical facilities
• Reduced hours, part-time, work at home
• Alternate formats for
communications
• Bundling
• Exceptions to
policies (e.g. attendance)
• Uniforms, equipment, tasks etc.
• Dignity of Risk.
UNDUE HARDSHIP
Cost of doing business
• More than a mere negligible effort is
required to satisfy the duty to
accommodate. The use of the term
undue infers that some hardship is
acceptable. It is only undue hardship
that satisfies this test
Central Okanagan School Dist. No 23 v.
Renaud (1992, Supreme Court of Canada)
NOT REQUIRED…
• Fundamental changes to position
• Employee preference!!
• Paying for no work or unnecessary work
• Absolutely everything possible
• Complete unfitness for work for the
foreseeable future
• Ignoring previous accommodations made
FACTORS
•
•
•
•
•
•
•
financial cost
impact on collective agreement
morale
interchangeability
size
Safety
BFOQ
B.F.O.Q.
Bona Fide and
reasonable discrimination
does not extend to allow
for the failure to
accommodate based on
9(2) characteristics.
Bona Fide Occupation Requirement
•
•
•
•
•
•
Good Faith and rationally connected?
Impossible to Accommodate
Evidence of investigating alternatives
Consulted with experts
Systemic implications
Universal or inclusive
F.A.Q.
•
•
•
•
•
•
•
How long does obligation continue?
Pay issues
After the accommodation
Unionized workplaces i.e. cross union
Posted vacancies
Attendance management
Accommodation funding [WCB, EPB,CPP]
PRE-EMPLOYMENT
•
•
•
•
•
•
Applicant not required to disclose disability
Physical testing must be related
Individized testing required
If disability disclosed obligation to accommodate
Review systemic barriers
Section 11 of The Code
Case law
•
•
•
•
Firefighter Ont. [Davis]
Safety gear [Steel toe]
Paramedic driver’s license [Cassidy-MS]
Hearing impaired
County of Brant v. OPSEU, 2013
ONSC 1955 (CanLII)
• Judicial Review of Labour Arbitration
• Paramedic with injuries requests
accommodation as 3rd Ambulance attendant
• Still had lifting restrictions
• Risks inherent to the position
• The risks he assumes are potential risks and not
direct threats