The Duty to Accommodate
Re-entry into the Workplace After a
Medical Leave
Sue Ferguson
Brian Chutter
Patty Beatch
Disability Management Program (DMP)
● Used by employers to assist employees who
●
●
●
●
are unable to work due to injury or illness
Some districts are implementing programs
Most districts react to employees wishing to
return
Not all districts are tracking absenteeism rate
Some districts encouraging early returns
Welcome and Introductions
● In 15 seconds or less
• Who are you?
• What one word best describes your experience
with assisting employees back to work?
● Recorder/Spokesperson
● Table’s Learning Intentions
• With what do you want to leave this session?
Learning Intentions
● Appreciate the benefits of getting people
●
●
●
●
back to work
Define “Duty to Accommodate”
Describe the accommodation process
including roles and responsibilities
District experiences in SD No. 39 (Vancouver)
Questions, answers, closing
Why Do It: Trends
● Aging workforce
● Sandwich generation
● Health care and insurance costs
● Complex illnesses, disorders, and injuries
● Access to doctors, specialists, treatment
Why Do It: Benefits to Employee
● Likelihood of return
• off 4 months:
• off 8 months:
• off 16 months:
60%
40%
20%
● Why is that?
BCTF Teachers’ Rehabilitation Program
Why Do It: Benefits to Employee
● Secondary factors
•
•
•
•
•
•
New habits/routines form
Loss of ties to workplace
Self-esteem issues
Family tensions increase
Addictions may be formed
Anxiety of returning
Why Do It: Benefits to Employee
● Benefits run out
● Dependent on GP
● Proper diagnosis/treatment
● Provides productive work
● Increases self-esteem
● Maintains connections with colleagues
● Reduces secondary factors
Why Do It: Benefits to Employer
● Direct costs
•
•
•
•
•
Sick leave
WCB
LTD
Replacement
Premiums (extended, life, pension)
● Bottom line dollars
Cost of Illness and Injury
● 2010 Conference Board of Canada study found
an average of 9% of full-time employees were
on STD in 2008
● Direct cost of absenteeism averaged 2.6% of
payroll in those who tracked costs
● Less than half of Canadian organizations track
absenteeism
Beyond Benefits II: Disability Plans and Absence Management in
Canadian Workplaces, Conference Board of Canada, 2010
Cost of Illness and Injury
● Average absenteeism rate in 2011 was 9.3
days
● Educational services absenteeism rate (9.4
days)
● Canada has a higher absenteeism rate than US
or UK
● Estimated direct cost of absenteeism to
Canadian economy was $16.6 billion in 2012
Absenteeism Trends in Canadian Organizations Missing in Action,
Conference Board of Canada 2012
Why Do It: Benefits to Employer
● Indirect costs
• Loss of experienced, trained employees
• Continuity issues for students
• Service reduction – if not replaced
• Hiring and training
• Retention
Why Do It: Benefits to Society
● 30 year old employee never works again
• Loss of a valuable skilled/trained resource
• Loss of tax revenue
• Increase in social assistance costs
● If not enough reasons — it is the law
Human Rights Legislation
● Supreme Court of Canada
• To eliminate discrimination which is “arbitrary
and based on preconceived ideas concerning
personal characteristics which, when
accommodation occurs, do not affect a
person’s ability to do a job”
Hydro Quebec SCC 2008
Duty to Accommodate
● Accommodation means making changes to
certain rules, standards, policies, and physical
environments to make sure that a person is
not discriminated against — or excluded —
because of their age, race, sex, or any other
protected ground
Duty to Accommodate
● The legal duty to accommodate arises when a
workplace rule, standard, or policy creates a
barrier for employees based on a ground of
discrimination in the British Columbia Human
Rights Code
When is Accommodation Required?
● Employers have a legal duty to take
reasonable steps to accommodate an
employee who requests accommodation when
it is based on one of the prohibited grounds of
discrimination
When is Accommodation Required?
● If based on a health condition, there must be
a “disability”
● BC does not have a definition of “disability”
When is Accommodation Not Required?
● There are some exceptions to the duty to
accommodate
• When the request for accommodation does not
fall under one of the grounds of discrimination
• When there is a bona fide occupational
requirement
● BC does not have a definition of “disability”
When is Accommodation Not Required?
● An employer will have met its duty to
accommodate when
• An employee refuses the employer’s assistance
• The employee refuses to provide medical
verification
• The employee refuses a reasonable offer of
accommodation
Bona Fide Occupational Requirement (BFOR)
● Discrimination may be allowed if an employer
can show that a job requires a discriminatory
standard, policy, or rule
• E.g., refusing to hire a legally blind person as a
driver
Meioron, British Columbia (Public Service Employee Relations
Commission) v. BCGSEU [1999] 3 S.C.R.3
Duty to Accommodate
● Supreme Court of Canada
• Purpose of duty “not to completely alter the
essence of the contract of employment”
• To perform work in exchange for remuneration
Hydro-Quebec and Syndicat des employees de techniques
professionalles et de bureau d’Hydro-Quebec, section locale 2000
(SCFP-FTQ), 2008 SCC 43
Who is Responsible?
● Accommodation is a shared responsibility
between the worker, the employer, and the
union
● Flexibility, good communication, and
cooperation among the parties is key to
successful accommodation
Employer’s Duty to Accommodate
● Point of “undue hardship” factors
• Primary: Cost and safety
• Secondary: Disruption to collective agreement,
morale, interchangeability
• Individual facts and circumstances
• Employer’s size, resources and options
Employer’s Duty to Accommodate
● Physical changes to the work site
● Graduated return to work
● Existing positions only
● Bundling/re-bundling of non-core duties
● Reduced assignment
● Doesn’t include creating work or employee
preference
Employer’s Duty to Accommodate
● Reasonableness
• While individual wishes may be taken into
consideration in making decisions, the
employer must make reasonable steps to
accommodate
• The accommodation must be workable, not
perfect
Union’s Duty to Accommodate
● Facilitate/cooperate in process
● Suspend seniority or other collective
agreement provisions
● Consider impact on other members
• A senior employee cannot normally be
displaced to effect an accommodation
• Others in the workplace cannot be
overburdened as a result
Employee’s Duty to Accommodate
● Provide medical evidence of disability
● Provide limitations (physical/psychological)
● Participate in treatment
● Provide updated resume
● Cooperate/participate in job search
● Accept accommodation: may not be first
choice
Time to Work!
● Read the fact sheet and the medical notes
● Determine how you would deal with the
situation
• Do you have enough information?
• What might you have done?
● You will meet with the employee and have 10
minutes to hold a discussion
Group Discussion
● Teacher with multiple chemical sensitivities
• Competing medical reports
• Specialist: can never return
• Grievance dismissed
School District No. 36 (Surrey) v. STA (Willis)
Employee Medical Information
● The employer is entitled to such medical
information as is needed to assist in an
accommodation
● Not normally diagnosis
● Restrictions vs recommendations
Employee Medical Information
● Considerations
• Maintaining privacy
• Storage and access
• Third party medical information
Employee Medical Information
● Return to work
• Nature of the illness and sufficient information
to show can safely return to work
● Accommodation
• Existence of a disability
• Limitations and restrictions — doctor or physio
• Recommendations — doctor does not know job
Employee Medical Information
● Is sufficient medical information available to
support the accommodation on the basis of
a disability?
● Can the individual be supported in their
current position?
● If not, get updated resume and look at jobs
● Is a leave, partial or full time, required by the
individual?
Employee Medical Information
● College of Physicians and Surgeons
Employee Medical Information
● Colin Taylor — Medical Leave Form
● A starting point for granting a leave on a
medical basis
• May not contain all the information needed for
a return to work or accommodation
• Detailed follow-up questions regarding an
employee's specific physical and cognitive
limitations and restrictions could be justified
Page 31 paragraph 98 BCPSEA v BCTF Provincial Matters Grievance
Medical Leave Forms/ Colin Taylor 2004
Employee Medical Information
● The onus is on the employee to provide
evidence of a disability
Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, 2008 SCC 39
Employee Medical Information
● Employer is entitled to ensure that there is
sufficient and objective medical evidence to
support an individual’s safe return to work
and accommodation
British Columbia (Ministry of Human Resources), supra, at para.307
Employee Medical Information
● Without the specific medical evidence as to
the physical limitations or the exact nature of
the disability, an employer has no way of
determining whether or not it is safe to
accommodate or return that person to work
British Columbia (Ministry of Human Resources), supra, at para. 307
Difficulties Getting Medical Treatment
● 25 % of employees off work had difficulties
getting the right medical treatment at first
● 21% if physical health issue
● 35% if mental health issue
● 39% if both physical and mental health issue
Source: Conference Board of Canada October 2013
Prepare to Meet the Employee
● Prepare to have a difficult conversation
1. Identify the purpose of the meeting
2. Listen to the employee’s story
3. Manage the emotional climate
4. Clarify information: request more information
as needed — medical — resume — skills
5. Summarize, reflect, and
6. Respond
The Accommodation Process
● What information do you need?
● What are the restrictions?
● Is the recommendation the only way to deal
with the restrictions?
● Checklist
● Be prepared to share your plan
● Have doctor sign off that this meets the
restrictions
The Accommodation Process
● Is union involvement needed?
● Is there any consideration that would impact
the collective agreement going forward?
● Is the accommodation permanent or
temporary?
Trends
Common Language
● Graduated return to work
● Reduced assignment
● Modified duties
● Rebundling
Graduated Return to Work
● Classroom continuity considerations
● Agreement with union for a job share
diminishing over time — incorporate into
posting
The Return to Work Plan
● The Plan
● The Players
● The Preparation
● The Progress
Document What Was Considered
● Process, process, process …
● Can’t assume, must prove considered
● Canvassed, considered, and investigated
● Restrictions and qualifications
● What was considered?
● What was rejected and why?
● Union/employee options considered?
Implementation of the Plan
● Update the supervisor and co-workers
● If costs involved — separate account
● Convenient start date
● Supervisor/employee log book
● Set review date
Implementation: Sharing of Information
● Implementation: Sharing of Information
• Who needs to know?
• What information?
● Are there safety considerations?
• E.g., awareness of epilepsy, signs of mental
illness?
Follow-up
● Has the medical condition changed?
● Is accommodation still required?
● Are changes needed?
● What happens if changes in workplace?
• Operational changes
• Transfers/layoff/bumping
Role of Rehabilitation Program
● Individual meetings on specific cases with
employee, school district representatives,
union
● Identify anticipated return to work needs — to
start the planning process early
● Shared responsibility to monitor return to
work
Role of Rehabilitation Program
● Work with employee to get to a point of being
ready to return to work
● Work with employer and union to provide
relevant information to facilitate return
to work
Role of Rehabilitation Program
● Global approach — includes assessment and
therapies for work and outside of work
● Provide information to employer pertaining to
workplace
● Attend monthly meetings with school district
and union
Role of Rehabilitation Program
● BCTF Program: voluntary
● JEIS Program: mandatory
Rehabilitation Programs
● JEIS Program
• Triggered after six days of absence
• Rehabilitation consultant contacts employee
• Standard medical form sent when absence
expected to continue
• Employer notified if not participating or not a
candidate
Rehabilitation Programs
● BCTF Rehabilitation Program
• Voluntary
• Employee can self-refer at any time
• Employer or union may refer — usually after 20
days of absence
• Rehabilitation contact outlines the program for
employee — if employee accepts, begin process
BCTF Rehabilitation Program
● All teachers contributing to Salary Indemnity
Plan are eligible
● Can be referred even if not off work —
preventative
● Designated rehabilitation provider companies
Rehabilitation Programs
● May cover or cost-share for therapies beyond
extended health coverage
• E.g., psychological, physical or occupational
therapy, speech therapy
Rehabilitation Programs
● May recommend therapies
or equipment for home or
at work
• Employee responsible for
equipment for their general
use
• Employer may be requested
to pay for workplace
equipment
Rehabilitation Program
● Medical management
● Clarification of restrictions
● Accommodation solutions
● Financial expertise/assistance
● All parties work together for the best
outcome
Closing Remarks
● Please fill in the evaluation form
● Last questions/comments?
Thank you for spending this time with us!