Embed Size (px)
Citation preview
Workplace Leave Law Series:
Strategies to Navigate the
Changing Landscape in Canada
Thursday, October 26, 2017
Audio
Questions and Tech Support
Jessica ThomsonNeuman Thompson
Alberta
Amy BradburyBarteaux Durnford
Atlantic Canada
James KondopulosRoper Greyell
British Columbia
Kseniya VeretelnikLoranger Marcoux
Quebec
Kit McGuinnessMcKercher
Saskatchewan
Shana FrenchSherrard Kuzz
Ontario
British Columbia
James D. Kondopulos*
* Practising through a law corporation
Managing Non-Occupational Medical Leaves
• Employer has the right and responsibility to manage the
workplace and the workforce, including attendance at
work and medical leaves
• Accommodation is a “multi-party inquiry”
• However, the ultimate responsibility to accommodate is
that of the employer
Managing Non-Occupational Medical Leaves
• Duty to accommodate is not triggered unless the employee
establishes he or she has a disability or illness which
restricts or limits reporting to work and performing of duties
• Ordinary rights and obligations which flow from
employment relationship apply, subject to the requirements
of human rights law (including the duty to accommodate)
• Employee misconduct
• Restructuring and workforce reduction
Multi-Party Process
Employee’s obligations in the accommodation process:
– Must bring the need for accommodation to the attention of the
employer
– Must establish the fact of disability or illness
– Must supply all necessary medical information to establish a nexus
with restrictions and/or limitations and develop a proper
accommodation
– Must participate in accommodation efforts
– Must be prepared to compromise and is not permitted to reject a
reasonable accommodation (cannot demand what is viewed to be
a perfect accommodation)
Exchange of Medical Information
• Employer has recognized legal right to obtain relevant
information about an employee’s medical condition
• In cases of accommodation, the employee is required
to provide information regarding:
– current and future ability to report to work and perform duties,
including fitness to work and prognosis
– nature of accommodation sought
• Employer will generally not be entitled to diagnosis
• Employer may request:
– information about general nature of the medical condition
– whether condition is permanent or temporary
– estimated time frame for improvement (if known)
– functional restrictions and/or limitations
– possible alternative duties in as much detail as possible
– how medical conclusion was reached: diagnostic or other
objective tests
Obtaining Medical Information
• Need to make request through employee – unless
consent is received to interact with the doctor directly
• Things to consider:
– provide context for request, e.g. a history of the medical leave
and any observed patterns of absence
– outline the physical and cognitive requirements of the job and
consider attaching job description
– consider paying reasonable fee for the doctor’s assessment
Written Request for Medical Information
• Employer is entitled to additional information where:
- medical information received is unclear, conflicting or
suspicious or lacks objectivity
- employee or doctor are unresponsive
Additional Medical Information
Alberta
Jessica Thomson
• Statutory leaves are provided by:
– Provincial legislation (most commonly); and
– Federal legislation
• Based on exclusive Federal heads of power in the Constitution
Act, 1867
• e.g. Banking, Railroads, Airports
• It is unlawful for an employer to deny an employee a
statutory leave to which they are entitled
Statutory Leaves of Absence
Statutory Leaves of Absences
• Generally, statutory leaves are unpaid
– Limited exceptions exist
– May be entitled to Employment Insurance (EI) benefits under the
Employment Insurance Act
• Employees may continue to earn credit for length of
employment, length of service and seniority
– e.g.) Ontario, BC
• Employment benefit plans must be continued provided the
employee continues to pay premiums
• Variations between provinces in length of
employment required before employees are
entitled to a statutory leave:
– e.g.) 0 days, 90 days, 13 weeks, 52 weeks…
– Also depends on type of leave
• Employees should be reinstated to the same or
comparable position (if same no longer exists)
upon return from leave
Statutory Leaves of Absences
Statutory Leaves
• Sick Leave
• Bereavement Leave
• Compassionate Care Leave
• Personal Emergency Leave
• Ontario-specific; only applies if Employer has 50 or
more employees
Statutory Leaves
• Pregnancy/Maternity Leave
• Parental Leave
• Family Responsibility Leave
• Critical Illness of a Child Leave
• Death or Disappearance of a Child as Result of a Crime
Leave
• Organ Donation Leave
• Domestic Violence Leave
• Citizenship Ceremony Leave
• Long-term Illness/Injury Leave
• Unexpected End of Pregnancy Leave
New / Emerging Statutory Leaves
Other Types of Statutory Leave
• Reservists’ Leave
• Jury/Court Duty Leave
• Public Office Leave
• Suicide of Child/Spouse Leave
• Public Emergency Leave
• Wedding Leave
• Victim of Crime Leave
• Voting Leave
Saskatchewan
Kit McGuinness
Broad statutory protections for religious rights in Canadianhuman rights law
• The Saskatchewan Human Rights Code: “creed” and“religion” are related prohibited grounds for discrimination.
• S. 16(1) of SHRC.
• Similar protections under other human rights codes/regimes indifferent jurisdictions
Background – Legal Framework
• Employer/service provider must accommodate to the
point of undue hardship
• “Undue hardship” is a very high standard and much
greater than mere inconvenience.
• Van der Smit v. Alberta (Human Rights and
Citizenship Commission) 2009 ABQB 121
Background – Duty to Accommodate
OHRC v. Simpsons-Sears, [1985] 2 SCR
536
Chambly v. Bergevin, [1994] 2 SCR 525
Leaves for Religious Considerations –
Foundational Cases from
the Supreme Court of Canada
Markovic v. Autocom Manufacturing Ltd. [2008]
HRTO
Leaves for Religious Considerations
– Key Practical Case
Koroll v. Automodular Corporation 2011 HRTO 774
Smith v. Network Technical Services Inc. 2013 HRTO
1880
Leaves for Religious Considerations –
post Markovic Cases
• No entitlement for employees to have paid days off for religious considerations…yet
• Employers have duty to accommodate religious considerations under their jurisdiction’s human rights code – must accommodate bona fide requests to point of undue hardship
• “Menu of options” approach first used in Markovic continues to be good law and consistent with human rights principles
• Employers should develop policies and communicate them clearly to employees with regards to religious holidays
• Employers should remain flexible in considering their duty to accommodate, and remember that there may be instances where paid days off are the appropriate way to accommodate religious holidays
Leaves for Religious Considerations -
Conclusions
Atlantic Canada
Amy Bradbury
Family Status Accommodation
Two Concerns:
1.What is the test for determining if discrimination has
occurred?
2.What is required for employers to meet the duty to
accommodate?
Family Status Accommodation
Test 1 (2004 – Campbell River – BCCA)
… a prima facie case of discrimination is made out when
a change in a term or condition of employment imposed
by an employer results in a serious interference with a
substantial parental or other family duty or obligation of an
employee.
Family Status Accommodation
Test 2 (2014 – Johnstone v CBSA - FCA):
Prima facie discrimination is established when it is proven that:
(i) the child is under the employee’s care and supervision;
(ii) the childcare obligation at issue engages an individual’s legal responsibility
to that child;
(iii) the employee has made reasonable efforts to meet those childcare
obligations through reasonable alternative solutions and that no such
alternative solution is reasonably accessible (highly fact specific);
(iv) the impugned workplace rule interferes in a manner that is more than trivial
or insubstantial with the fulfillment of childcare obligations.
Family Status Accommodation
Test 3: The Standard Test for Discrimination
Apply the standard test for prima facie discrimination:
(i) Employee has a characteristic protected from discrimination;
(ii) Employee has experienced adverse treatment or impact;
(iii) The protected characteristic was a factor in the adverse
treatment or impact.
Courts and tribunals have found the first two tests too narrow –
this is the test to keep in mind.
Note that this test applies to both child care and elder care
obligations.
The Duty to Accommodate:
• Accommodation is bounded by “undue hardship” – does
not mean no hardship
• Factors to consider:
– Financial costs;
– Disruption of CA
– Employee morale
– Interchangeability of workplace and facilities
– Safety
– Size of operations
– The ease with which the workforce and facilities can
be adapted.
Family Status Accommodation
Typical accommodations might look
like:
• Changing hours of work
• Allowing employees to use overtime and
vacation days to make up lost time
• Compressed work weeks
• Working from home
• Job sharing
Family Status Accommodation
Employers lose these cases when:
• The Employer does not engage in the
accommodation process at all;
• The Employer does not provide evidence to justify
a workplace requirement;
• The Employer cannot provide evidence of undue
hardship and the inability to accommodate.
Family Status Accommodation
Employers win these cases when:
• The Employee does not cooperate and provide
information;
• The Employee has not made reasonable efforts to
find alternate solutions for child care / elder care;
• The Employee insists on one accommodation
solution;
• The Employer engages in accommodation and has
evidence to show undue hardship
Family Status Accommodation
Tips for Employers
• Listen to Employees and keep an open
mind
• Be able to defend your decisions
• Give notice of workplace changes
• Be flexible
• Lay ground rules
• Document all discussions
Family Status Accommodation
Quebec
Kseniya Veretelnik
Non-Occupational Medical Leaves
• Similar principles are applicable regarding
accommodation obligations.
• When the employer is entitled to ask for medical
information, it is often recognized that the diagnosis,
prognosis and any other relevant medical information can
be requested.
• Such requests for medical information may not be
deemed to constitute harassment: Syndicat des
travailleurs de l’aluminium d’Alma c. Rio Tinto Alcan, 2016
QCCA 879
Non-Occupational Medical Leaves
• Duty to accomodate as applied in the context of non-
occupational medical leaves may soon extend to
medical leaves in the context of workplace injuries:
Commission de la santé et de la sécurité du travail c.
Caron, 2015 QCCA 1048
Charter of Human Rights and Freedoms
3. Every person is the possessor of the fundamental freedoms, including
freedom of conscience, freedom of religion […]
10. Every person has a right to full and equal recognition and exercise of his
human rights and freedoms, without distinction, exclusion or preference based
on […] religion […]
Discrimination exists where such a distinction, exclusion or preference has the
effect of nullifying or impairing such right.
16. No one may practise discrimination in respect of the hiring, apprenticeship,
duration of the probationary period, vocational training, promotion, transfer,
displacement, laying-off, suspension, dismissal or conditions of employment of
a person or in the establishment of categories or classes of employment.
Leaves for Religious Considerations
Leaves for Religious Considerations
• Rule: Accommodation, to the point of undue hardship.
• To benefit from accommodation, one must firstly
demonstrate how the requested leave is related to one’s
religion : Syndicat de l'enseignement Val-Maska et
Commission scolaire de St-Hyacinthe, 2015 QCTA 31
• In some cases, accommodation for religious
considerations may extend to paid time off:
– Alliance des professeures et professeurs de Montréal (FAE) et
École Peter Hall inc. (grief syndical) , D.T.E. 2010T-816
– Commission scolaire régionale de Chambly c. Bergevin, (1994) 2
R.C.S. 525
Family Status Leaves
• « Family Status » is not a prohibited ground of
discrimination under the Québec Charter
• Québec Court of Appeal confirms that parental obligations
are not included in the « Civil Status » protected ground
under the Québec Charter: Beauchesne c. Syndicat des
cols bleus regroupés de Montréal (SCFP-301), 2013
QCCA 2069
• No obligation for Québec employers to accommodate an
employee for family/parental reasons
Family Status Leaves
• Family or parental leave and absences under the Act
respecting labour standards do not allow an employee to
request a schedule modification in order to fulfil his/her
familial obligations.
Questions & Answers
Conclusions and Wrap Up
Please complete the survey that should appear on your
computer screen when you disconnect from the webinar.
To listen to this webinar again or to any past ELA webinars,
please visit our website at:
www.employmentlawalliance.com.
A Certificate of Attendance and supporting materials are
posted on the ELA website (click this webinar’s title; the link
to the Certificate is on the landing page). Attendees
seeking continuing education credit should submit these
materials directly to the appropriate organization.
Please Complete our Survey
For More Information
If you have any questions, or need further
information please contact:
Mary Anne Creighton
Director, Member Relations
om
