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The Invisible Disability: The Challenges of Accommodating Psychological Disabilities

The Invisible Disability: The Challenges Of Accommodating Psychological Disabilities

Maureen M. QuinlanHicks Morley Hamilton Stewart Storie LLP


Roadmap• Duty to Accommodate• Accommodating Psychological Disabilities• Multi-party Obligations• Medical Requests• Responding to Requests for Accommodation • Caselaw Examples

• Getting it Right, Getting it Wrong• Practical Strategies


OHRC Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions• Released June 2014• Detailed discussion of the duty to accommodate

• Procedural and substantive• Stresses the importance of respect for dignity,

individualization and participation in the accommodation process

• Policy, not law


Duty to Accommodate• When is the duty triggered?• Multi-party obligations• Procedural and substantive components• Individual assessment• Extent of the duty

• Undue hardship• BFOR• Duration


Accommodating Disabilities

• Identification• Physical and psychological

• Understanding medical evidence• Restrictions

• Modification• Current job or other roles

• Ongoing assessment


Definition of Disability• Human Rights Code definition of disability is expansive:

• Ontario - s. 10(b) of the Human Rights Code - condition of mental impairment or developmental disability

• s. 10(d) - a mental disorder • Common examples:

• Depression• Bipolar disorder• Stress/anxiety (in some cases)


Psychological Disabilities

• Among the most difficult to identify and address in the workplace

• Often invisible• Differential effect of particular illness, treatment regime

and the individuals ability to cope• Subjective assumptions and stereotypes

• Presents a unique set of challenges


Accommodating Invisible Disabilities

• Information required to trigger the duty to accommodate:• Low-threshold – whether the employer knew or

ought to have known that the employee has disability-related needs that require accommodation

• Obligations on all parties involved; employer, employee and union (if applicable)


Obligations On Employees

• Remains a multi-party obligation• May still require employees to provide appropriate

documentation• Cooperate in the accommodation process• Cooperate with treatment • Meet the standards once accommodation has been

provided


Obligations On Unions

• Act as a conduit for obtaining medical information • Provide independent advice• Assist in exploring accommodation• Obligation to cooperate


Obligations On Employers

• Employers cannot turn a blind eye to signs• Must be pro-active in making inquiries of employee

• Krieger v Toronto Police Services Board, 2010 HRTO 1361


Duty To Inquire

• No Blind Eyes• Does employee exhibit atypical or inappropriate

behaviour?• Is there a relationship between a disability and the

employee's job performance?• Gaisiner v. Method Integration 2014 HRTO 1718• Lee v. Kawartha Pine Ridge 2014 HRTO 1212


Access to Medical Information: The "when" and the "why"

Medical Absence(Proof of Disability)

"Are you really that sick?"

Return to Work(Proof of fitness to work)

"Are you really well enough to return and work?"

Accommodation(Proof of disability-related

"need")"Is this something you need because of

your ability or something you want because…"


Access to Medical InformationEmployee's

Right to PrivacyEmployer's Right

to Manage the Workplace


What Medical Information Can Be Requested?

• Typically uncontroversial:• Nature of the illness

• Duration/Prognosis

• Restrictions/Limitations

• Basis for Medical Conclusions



• Diagnosis?• Treatment Plan?

• Maybe

• Including medication and side-effects which may impact the job performance or other legitimate employer interests

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• Right to obtain a specialist opinion in certain circumstances• Independent Medical Examinations

• “Consensual” - securing consent by resistance• Under a collective agreement

• By order of a tribunal (arbitration/HRTO)• IMEs are not always a solution• One size questionnaires do not fit all situations!



• Key Case on Medical Information Management:• Complex Services v OPSEU (2012, Surdykowski)



Responding To Accommodation Requests

• Step 1: Sufficient medical information • No disability? No accommodation

• Step 2: Determine reasonable accommodation• Step 3: Ensure adequate support services

• Be conscious of managing stress• Consult with stakeholders before determining

accommodation would constitute undue hardship


How Far Must You Go To Accommodate?• Reasonable accommodation short of undue hardship• Cannot impose "no risk" standard• Must explore all reasonable options that would assist to reduce or

manage potential risks• Consider behavioural agreements requiring compliance with

recommended course of treatment• Ultimately, not required to expose employee, other employees or

members of the public to undue risk• Can't rely just on 3rd part adjudicator findings


Exhausting The Duty To Accommodate

• Buttar v Halton Regional Police Services Board 2013 HRTO 1578

• New police constable subject to statutory 12-month probationary period, developed OCD

• High likelihood of relapse, failed to seek treatment

• No obligation to accommodate further


Exhausting The Duty To Accommodate

• Buttar v Halton Regional Police Services Board 2013 HRTO 1578

• New police constable subject to statutory 12-month probationary period, developed OCD

• High likelihood of relapse, failed to seek treatment

• No obligation to accommodate further


Consequences Of Not Getting It Right

• Hamilton Wentworth Board of Education v Fair 2014 ONSC 2411


Consequences Of Not Getting It Right

• Laurentian University Faculty Association and Laurentian University (2015, Etherington)


The Practical Steps Is there a disability? what is the

extent of it?what are the restrictions?

Identify Restrictions are they clear

and current?are they

temporary or permanent?

Clarify Restrictions

from employee

from health professionals

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Key Takeaways – Employers Obligations

• Cannot turn a blind eye• Be pro-active and make inquiries

• Meeting needs not wants• Accommodation is problem solving

• Accommodation in same work first• Communicate and document


Key Takeaways - Employees Obligations

• Disclose disability• Cooperate with reasonable

requests for medical information

• Cooperate with treatment• Cooperate with reasonable

accommodation proposals


Key Takeaways – Union Obligations

• Act as a conduit for obtaining medical information

• Provide independent advice to the employee

• Assist in exploring accommodation options


Questions & Answers


The Invisible Disability: The Challenges Of Accommodating Psychological Disabilities

Maureen M. QuinlanHicks Morley, Hamilton Stewart Storie LLP

Documents

The Invisible Disability The Challenges Of …€¦ · The Invisible Disability: ... documentation • Cooperate in the ... • Cannot turn a blind eye • Be pro-active and make