LAWYERS
The Duty to Accommodate:
Making Sense of the Law on
Managing Disabilities in the
Workplace
Shannon G. Whyley
March 23, 2015
Western Canada’s Law Firm
Agenda
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LAWYERS
1. Introduction
2. Bona Fide Occupational Requirements and Undue
Hardship
3. Obligations of Employers, Unions and Employees
4. Accommodating Mental Disabilities
5. Practical Issues
6. Questions
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1
Introduction
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LAWYERS
1. Introduction
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Introduction
LAWYERS

Developed over last 20 to 25 years

Product of human rights law

Part of the prohibition against discrimination
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Section 16 Human Rights
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Code
LAWYERS

Comparable provision found in all jurisdictions

Prohibits discrimination in employment
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The
Accommodate
LAWYERS
Employers are required to make every reasonable effort, short
of undue hardship, to accommodate an employee who comes
under a protected ground of discrimination under The
Saskatchewan Human Rights Code
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The
Accommodate
LAWYERS

Protected Grounds of Discrimination
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Religion
Creed
Marital Status
Family Status
Sex
Sexual Orientation
Disability
Age
Colour
Ancestry
Nationality
Place of Origin
Race or perceived race
Receipt of public
assistance
 Gender identity
“Disability” need not be a work-related illness or injury to
be protected under human rights law and trigger the duty
to accommodate
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Disability: Section 2(1)(d.1)
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Saskatchewan Human Rights Code
LAWYERS

Any degree of physical disability, infirmity, malformation,
disfigurement, epilepsy, paralysis, amputation, lack of
physical coordination, blindness or visual impediment,
deafness or hearing impediment, muteness or speech
impediment, physical reliance on a service animal
wheelchair, or other device, intellectual disability or
impairment, learning disability or dysfunction, mental
disorder

This is a non-exhaustive list
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Key
Principles
LAWYERS

Discrimination does not have to be intentional
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Not sufficient to treat all employees the same

Duty to accommodate only arises once grounds for
accommodation have been established
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Requirements
the
Duty
LAWYERS
1. That the employer consider the needs of the employee.
2. That the employer make a reasonable attempt to modify
the rule or practice
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When
Dutytitle
arise?
LAWYERS
 Duty can arise in essentially all employment law
contexts
 job functions and work schedules
 return to work programs (or lack of such)
 discipline
 performance issues
 lay-offs
 termination
 often performance issues
 even if no cause, may have human rights angle
 e.g. employee was injured last week and laid off
this week
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When
Dutytitle
arise?
LAWYERS
Employer must accommodate, unless employer can establish
that discriminatory requirement was a bona-fide
occupational requirement and to accommodate would
cause undue hardship.
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BFORs
Hardship
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LAWYERS
2. Bona fide Occupational
Requirements and Undue
Hardship
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Bona-fide Occupational
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Requirement
LAWYERS

Three part test to justify BFOR:
 Adopted for a purpose rationally connected to the performance of
the job
 Adopted in an honest and good faith belief that it was necessary to
the fulfillment of that legitimate, work-related purpose
 Reasonably necessary to accomplish the legitimate work-related
purpose
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Undue
Hardship
LAWYERS

Duty to accommodate to the point of undue hardship – not
found in section 16 of the Human Rights Code

Concept developed by Courts and tribunals
 The O’Malley Case: landmark decision that established
duty to accommodate exists only to point of undue
hardship
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Undue
Hardship
LAWYERS

Flexible concept; intentionally vague

More than minor inconvenience

Can require changing hours of work, modifying job duties,
providing physical aids, training, or granting leave of
absence

No requirement to fashion a make-work position
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Undue
Hardship
LAWYERS

Statute may establish duty; e.g. Saskatchewan
Employment Act

Test is objective and should be based on independent
opinion, medical evidence, or actual attempts at
accommodation

Need to ask “why not?”

Primary onus is on the employer
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Some
Consider
LAWYERS

Financial cost

Health or safety risk

Effect on co-workers

Size and nature of business

Disruption of the collective agreement

Interchangeability of the workforce and facilities
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Disruption to the public

Business efficiency
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Who
to Accommodation?
LAWYERS

Regular employees

Probationary employees

Temporary employees

Job applicants
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Accommodate
LAWYERS
 Employee gets to pick accommodated duties
 Employer must always find accommodated duties
 Employers are not entitled to medical disclosure
 Employers can never win a duty to accommodate
case
 Pay is red circled if duties reduced to fit restrictions
 Employer only has to accommodate workplace
injuries
 Employee can refuse reasonable accommodation
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Obligations
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LAWYERS
3. Obligations of Employers,
Unions and Employees
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Specific
LAWYERS
 Try to assist the employee to perform his or her
job as it currently exists
 Try to modify the job
 Try to find another job
 Try to modify or re-bundle another job
 Training
 Independent assessment
 Tolerating absences
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Specific
LAWYERS
 Change hours of work
 Physical Aids
 Leave of absence
 Displacing another employee?
 Law continues to evolve
 What wasn’t required a few years ago may now be
required
 Human Rights Commission has mandate to push the
envelope
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Obligations
of Employers
LAWYERS
 What constitutes “reasonable accommodation” is
mainly defined by case law
 also by statute
 s. 2-40 of The Saskatchewan Employment Act


restricts discipline or discharge for certain levels of absenteeism
due to illness/injury of employee or family members
whether undue hardship or not
 s. 2-41


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requires employer, where reasonably practicable, to modify
duties or reassign if employee becomes disabled and cannot
perform job duties
onus on the employer
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Obligations
of Employers
LAWYERS
 In practical terms, the test for accommodation is
“why not”
 need justifiable reasons
 not “we don’t have to” or “this is too disruptive”
 may have to try several accommodations
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Obligations
of the
LAWYERS
 Union can be liable if:
(1) party to the discrimination
(2) unreasonably blocks the accommodation
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Obligations
of the
LAWYERS
 Union can assist the process
 Union has a duty to co-operate in accommodation
 Not required to create undue hardship on other
members
 If it has a significant effect on rights of others
 Unions should not overlook these principles
 By taking the position seniority cannot be overridden
 Note: duty to accommodate trumps seniority
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Obligations
of Employees
LAWYERS
 Must co-operate
 Must advise employer of capabilities and
restrictions
 Cannot insist on perfect solution
 Cannot insist on improvement of pay or position
 Refusal to accept accommodation may lead to
termination
 Must provide reasonable explanation for refusal
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Obligations
of Employees
LAWYERS
 Usually must bring need for accommodation to
attention of employer
 Sometimes not readily apparent
 Employer query:
 whether to investigate and invoke duty where not may have
otherwise existed
 “Duty to Inquire”
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Duty
Inquire
LAWYERS
 Mental Disability
 Mental illness
 Addiction
 Illnesses with social stigma
 Give rise to “Duty to Inquire”
 If there is evidence that employer knew or reasonably
ought to have known that the employee is suffering
from a mental illness, disability or addiction, the duty to
inquire is triggered
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Accommodating
Mental
Disabilities
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LAWYERS
4. Accommodating Mental
Disabilities
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Accommodating Mental
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Disability
LAWYERS
 Each case is unique, but generally:
 Verify that employee has mental disability
 Establish nexus between mental disability and
the misconduct/behaviour
 If there is nexus, did mental disability cause or
contribute to all the misconduct or only some aspect
of it?
 Search for accommodation options
 Undue hardship?
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MacKenzie v Jace Holdings (2012
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BCHRT)
LAWYERS

Facts:
 8 year employee suffered from depression and had been treated
with medication and therapy, but didn’t inform employer
 Displayed mood swings and irritability, also frequently second
guessed and undermined superiors. Received written warning for
insubordination
 After receiving warning, employee took 2 months of stress leave.
Prior to stress leave, informed manager of depression
 Upon returning, had another incident of insubordination and was
dismissed
 At no time was employee’s past incidents of insubordination
reviewed to determine if mental illness was involved
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MacKenzie v Jace Holdings (2012
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BCHRT)
LAWYERS

Test for prima facie discrimination – Employee must show:
1. Disability exists
2. Suffered adverse treatment
3. Evidence from which it is reasonable to infer that disability was
factor in adverse treatment

Question was whether the disability impacted the reason
for her dismissal (i.e., whether nexus existed between
disability and her insubordinate behaviour)
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MacKenzie v Jace Holdings (2012
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BCHRT)
LAWYERS
 Tribunal found that at least 3 managers knew of
employee’s depression but made no further
inquiries to determine whether it impacted work
performance
 “No effort appears to have been made by Thrifty’s to
determine how Ms. Mackenzie’s disability affected her
work performance or whether accommodation may be
required”
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MacKenzie v Jace Holdings (2012
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BCHRT)
LAWYERS
 Employer argued that it was a BFOR that each
employee comply with employer policies, including
the insubordination policy
 Tribunal found that employer failed to provide
evidence that accommodating employee would
impose an undue hardship
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Telecommunications
Workers
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style Union v
Telus Communications Inc. (2014
ABCA)
LAWYERS

Facts:
 Employee with Asperger’s Syndrome was hired as a call centre
agent. Position involved a 90-day probationary period
 As part of his on-line application he filled out a diversity form and
answered “yes” when asked if he had a disability
 Employee claimed he told the employee who interviewed him
about his disability as well as his supervisors
 During a meeting with his manager to discuss his performance, the
employee told the manager his performance problems were
related to his “condition”. Employer terminated the employee prior
to the end of probationary period because he was unsuitable for
the position
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Telecommunications Workers Union v Telus
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Communications Inc. (2014 ABCA)
LAWYERS

Court of Appeal found:
 The test for prima facie discrimination is met:
1. Disability exists
2. Suffered adverse treatment
3. Evidence from which it is reasonable to infer that disability was factor
in adverse treatment
 Test for prima facie discrimination does not include “knowledge”
 Employer’s knowledge of an employee's disability in regard to
adverse-effect discrimination is unnecessary because "[b]y
definition, adverse-effect discrimination is the uniform application
of a seemingly neutral employment policy to all employees,
regardless of whether some employees have protected
characteristics. The impugned policy applies to a disabled
employee whether or not the employer knows about the disability".
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Telecommunications Workers Union v Telus
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Communications Inc. (2014 ABCA)
LAWYERS

Court of Appeal found:
 There was no suitable accommodation that would allow the
employee to satisfy the employer’s performance requirements,
given the manner in which the employee’s Asperger’s affected his
performance.
 Employer did not have to accommodate a probationary employee
by finding him a different position.

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The authorities “suggest that probationary employees need only be
accommodated within the scope of their position for which they were
hired"
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Practical
Issues
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LAWYERS
5. Practical Issues
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Practical
LAWYERS

Education and training programs

Internal review of policies and practices

Develop protocol for handling requests

Conduct thorough investigation

Know all of the facts
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Practical
LAWYERS

Investigate precise nature of the characteristic requiring
accommodation

Identify precisely what accommodation may be required

Consider all alternatives

Ask “why not?”
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Practical
LAWYERS

Be able to demonstrate alternatives that were considered
or tried

Involve the union and the employee

Consider what the employee can and cannot do

Collective agreement may not be the last word
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Practical
LAWYERS

Courts, arbitration boards and tribunals have broad
remedial authority including reinstatement

Legal process may occur years after the event

When in doubt call your lawyer
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LAWYERS
Practical Scenarios
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Questions
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LAWYERS
6. Questions?
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