Duty to Accommodate Samuel Safety Systems. NEWS December 2010 The Human Rights Tribunal of Ontario seems to be a more frequent stop for injured workers

Duty to Accommodate

Samuel Safety Systems


NEWS December 2010

The Human Rights Tribunal of Ontario seems to be a more frequent stop for injured workers with accommodation concerns since changes to the provincial human rights system were adopted 2 yeas ago

WHY?


Ontario Human Rights Code Amendments 2008

• The amendments to The Code sought, in part, to get claims before the tribunal more quickly. That objective is being realized

• The process is now leaving some employers to concurrently deal with both the tribunal and the WSIB


WSIB Rulings

• So,why issue complaint with HRTO?• Employers and workers alike must understand that a

WSIB ruling in favour of an employer’s accommodation efforts is not necessarily the final word that the accommodation is adequate

• The Humans Rights Tribunal may come to a different conclusion

• Human Rights Trumps WSIB


Example 1

• Jan 09 Worker suffered a work related injury to her back and was off work

• March 09 worker returned to work on trial basis under RTW plan

• After 8 weeks back, at a meeting with RTWS, and worker, employer stated that worker could not do all duties and no suitable job available

• WSIB put worker into LMR


Example 1 Continues

• Worker complained to Human Rights Tribunal of Ontario

• Employer wanted the HRTO to dismiss case because already dealt with by WSIB

• HRTO determined that WSIB did not meet Code obligations

• Employer’s request for dismissal denied


WSIB and The Code

• WSIB concentrates it efforts on work related injuries and illnesses

• The Code does not, any and all injuries / illnesses which result in a permanent or temporary disability must be accommodated unless “undue hardship” can be proven by the employer

Work Related Non- Work Related


Employers & WSIB

• The Code – The duty to accommodate persons with disabilities means accommodation must be provided in a manner that most respects the dignity of the person, if to do so does not create undue hardship

• Prior to the 2008 Code amendments, employers and the WSIB previously paid little attention to the undue hardship standard outlined in the code


Example 2

• A wheelchair entrance over a loading dock or through a service area or garbage room does not respect the dignity of the worker. Persons with disabilities should have the same opportunity as others to enter a building in a manner that is as convenient and pleasant for them as it is for others

• Which reminds me of : REG 429/07


Regulation 429/07• Ontario is developing accessibility standards to identify, remove

and prevent barriers so people with disabilities have more opportunities to participate in everything this province has to offer.

• Customer service• The Accessibility Standards for Customer Service Regulation is now

the law. • As of January 1, 2010, Ontario’s hospitals, schools, municipalities

and other public sector organizations are now required to comply with the requirements.

• The province’s private and not-for-profit sectors will need to meet the requirements by 2012


How do we Comply?• Assess your facilities, develop customer service policies and

procedures for serving people with disabilities If you have 20 plus employees• Complete an online report on your compliance by the reporting

deadline• Document in writing all of your policies and procedures on how

you provide accessible customer service• Notify customers that all of the documents required by the

standard are available upon request• When providing documents required under the standard, make

sure the information is in a format that takes into account the person’s disability


Hamilton Spectator Jan. 5 /2011• Accessibility standards 'confusing' • Local businesses not clear on exactly what they are

supposed to do • According to the Ministry of Community and Social

Services, any business that doesn’t comply could face a hefty penalty — anywhere between $200 and $15,000.


WSIB and The Code

• WSIB RTW policies make it very clear “NOW” that Employers need to be aware of their obligations under both The Code (Ontario Human Rights Code) and the WSIA (Workplace Safety and Insurance Act) when dealing with return to work and employment issues

• WSIB has no authority to enforce The Code, but instead claims to take on the role of educator


WSIB and The Code

• Clarification is welcome in light of the differences between accommodation standards under some WSIB Policies and The Code

Differences• WSIB – Is suitable work available for an injured

employee?• The Code - Can you accommodate the worker’s

disability, to the point of undue hardship?


WSIB Re-employing Injured Workers

• The obligation to re-employ lasts for the earliest of:– Two years after the date of the injury– One year after the worker is able to do the

essential duties of the pre-accident job– The date the worker reaches age 65

WAIT !!!!!


The Code States

• Under the code, there is no fixed rule as to how long an employee with a disability may be absent before the duty to accommodate has been met

• The duty to accommodate does not necessarily guarantee a limitless right to return to work

• On the other hand, a RTW program that relies on arbitrarily selected cut-offs or that requires an inflexible date of return may be challenged as a violation of The Code


Example 3

• Worker alleged discrimination in employment on the basis of disability

• Worker injured and off work due to medical treatment and surgery

• “Laid Off” a month later as employer unable to accommodate the applicant short of undue hardship because of the nature of her job and the physical premises of their business


Example 3 Continued• WSIB determined employer has no “re-

employment obligation”• Worker complained to Human Rights• Found WSIB simply applied its policy that

employers with less than 20 employees are not held to re-employment obligations

• Employer’s request for early dismissal of the worker is dismissed as there was no attempt to accommodate


The Codes Standards for Accommodation

• The needs of persons with disabilities must be accommodated in the manner that most respects their dignity, to the point of undue hardship

• There is no set formula, each person is unique• Taking responsibility and showing willingness to

explore solutions• Voluntary compliance may avoid complaints under

the code


The Human Rights Code Undue Hardship

All employers have a duty to modify the work or the workplace to accommodate the needs of the worker to the extent of undue hardship

Undue hardship (very difficult to prove for a large company). Must prove through 1 of the following 3 factors:Cost

Must be quantifiable;Shown to be related to the accommodation; andSo substantial that they would alter the essentials nature of the enterprise, or so significant that they would substantially affect its viability

Outside sources of fundingThe availability of outside sources of funding may alleviate accommodation costs.

Organizations can (must) make use of outside resources ( Government funding programs) to meet their duty to accommodate, before claiming undue hardship

Health & Safety Where a health and safety requirement creates a barrier for a person with a

disability. Employer must show an objective assessment of the risk as well as a demonstrate all alternatives were exhausted


Undue Hardship

• Excluded factors when assessing undue hardship– Business Inconvenience– Employee Morale – Collective Agreements


Accommodation

• Accommodating someone with a disability is seldom as expensive or difficult as is sometimes imagined. Over two-thirds of jobs accommodations cost under $500.00; many cost nothing at all (OHRC)

• The problem is, who is going to manage the process?????


What is an Employer to Do?

• Have a documented RTW program• Consider all RTW matters from human rights

perspective• Fully discuss issues with worker• Consider all available options for accommodation• Clearly indicate why an option is not suitable• Respond to WSIB with Code considerations in mind• Document Everything


Changing Gears for a Bit

Grab a beverage and a snack


Employee Drug Screening

To Test or Not to Test?That is the Question



Drug Testing in Canada

• Can Canadian companies perform drug and alcohol testing on their employees?

• Yes, but, well, kinda


Canadian Human Rights Commission

• The Canadian Human Rights Act prohibits discrimination on the basis of disability and perceived disability.

• Disability includes workers with a previous or existing dependence on alcohol or a drug.

• Perceived disability may include an employer’s perception that a person’s use of alcohol or drugs makes him / her unfit for work


Right to Test

• The following types of testing may be included in a workplace drug – and – alcohol testing program, but only if an employer can demonstrate that they are bona fide occupational requirements


Safety Sensitive??• Random alcohol testing (not drug testing) for safety

sensitive jobs, as alcohol testing can indicate actual impairment of ability to perform essential duties of the job. Drug testing will only show the presence of drugs, not impairment

• A safety-sensitive job is one in which incapacity due to drug or alcohol impairment could result in direct significant risk of injury to the employee, others or the environment

• Any definition of safety sensitive job must take into account the role of properly trained supervisors and the checks and balances present in the workplace


Drug and Alcohol Testing• Reasonable Cause or Post Accident• Where there is reasonable grounds to believe there

is an underlying problem of substance abuse or where an accident has occurred due to impairment

• Provided that testing is a part of a broader program of medical assessment , monitoring and support


Monitoring Program

• Following disclosure of a current drug or alcohol dependency or abuse problem may be accepted if part of a monitoring, support program


Mandatory Disclosure

• Mandatory disclosure of present or past drug or alcohol dependency or abuse may be permissible for employees holding safety sensitive positions within certain limits, and in concert with ACCOMMODATION measures

• Employee not in safety –sensitive positions should not be required to disclose past alcohol or drug problems


Accommodation

• What does drug and alcohol testing have to do with accommodation?

• In the limited circumstances where it is justified, employees who test positive must be accommodated to the point of

UNDUE HARDSHIP


Example 4

Cross Border Trucking and Busing• Drivers denied employment opportunities or who face

disciplinary or other discriminatory employment consequences in Canada as a result of the imposition of the U.S. rules (drug and alcohol testing) have a right to file a complaint with the CHRC on the ground of real or perceived disability. Drivers who test positive must be professionally assessed and must be accommodated by their employer in accordance with Canadian law


Example 4 Continued

• Accommodation might include alternative employment within the company, and/ or treatment and rehabilitation. After treatment and rehabilitation, drivers could be reassigned to Canada only routes, unless doing so would constitute an undue hardship to the employer


Summary

• The CHRC will accept complaints from employees who believe they have been dismissed, disciplined or treated negatively as a result of testing positive on a drug or alcohol test. Workplace alcohol or drug testing policies that contain discriminatory elements may also be the subject of complaints


Summary

• Because they cannot be established as bono fide occupational requirements, the following types of testing are not acceptable:– Pre-employment drug testing– Pre-employment alcohol testing– Random drug testing– Random alcohol testing of employees in non-

safety sensitive positions


Any Questions?


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Duty to Accommodate Samuel Safety Systems. NEWS December 2010 The Human Rights Tribunal of Ontario seems to be a more frequent stop for injured workers