October 12, 2006 12:30 p.m. EDT

Playback: Monday, October 16, 3:30 - 5pm

Anne Gregory

Union Counsel
Canadian Union of Public Employees

Erin Kuzz

Employer Counsel
Sherrard Kuzz

Mary MacKinnon

Union Counsel
Raven, Cameron, Ballantyne & Yazbeck

Some of the questions to be addressed:

• What sorts of conditions qualify as disabilities entitling employees to accommodation? Do they include stomach flu? Migraine headaches? Burnout? Stress caused by disciplinary action? Chronic fatigue?
• How should an employer determine whether inadequate job performance is related to inability or disability?
• Does the employer have a duty to accommodate a disability if it is unaware that the employee is disabled?
• Does the employer have an obligation to make inquiries if it has some basis for suspecting that the employee may be disabled? What is the position of the parties if the employer makes inquiries, and the employee denies a disability, but denial is part of the disabling condition (e.g. alcoholism, mental illness), or the employee is unwilling, for personal reasons, to disclose confidential health information?
• If an employer has a duty to accommodate employees with disabilities including those whom it perceives to be drug-addicted, can it apply tougher rules to casual users?
• What sort of individualized evaluation does the duty to accommodate require (e.g. functional abilities assessment)? What medical evidence is an employer entitled to request to support an assertion of disability?
• What factors can an employer take into account in determining whether accommodative measures would cause undue hardship? Only those listed in human rights legislation (in Ontario, cost, health and safety, and source of funding) or such concerns as morale, productivity, operational efficiency, impact on collective agreement rights of other employees, e.g. seniority?
• How much absenteeism is an employer expected to tolerate before it becomes an undue hardship? Does the answer depend on the size of the employer’s workforce and the interchangeability of functions among employees?
• If the employer decides that a particular job would be unsafe for the employee to perform, given his or her disability, can the employee insist on doing it by accepting the risk?
• What kinds of jobs is an employer required to offer to meet the duty to accommodate? What kinds of jobs can an employee decline to accept without breaching the duty to co-operate?
• What kind of evidence would support a decision that accommodation is impossible, i.e. no accommodation would work?

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