Meeting the Duty to Accommodate:
Effective and efficient collaborative
accommodation processes
Post-Conference Workshop
Vancouver

Presented by Lancaster House

►covering employment in both federal and provincial jurisdictions◄

Friday, March 30, 2012
Full-Day Interactive Session
9:00 a.m. – 4:00 p.m.

Hyatt Regency Vancouver
655 Burrard Street, Vancouver, B.C. V6C 2R7

• CPD for Members of the Law Society of Upper Canada:
  5.5 Substantive Hours; 0 Professionalism Hours;
  Not accredited for New Members.
• This program has been approved by the Law Society of British Columbia for 5.5 Continuing Professional Development hours.
• This program has been approved by the Law Society of Saskatchewan for 5.5 Continuing Professional Development credit hours.

Accommodating disabled employees is supposed to be a collaborative, tripartite process in which the employer, the disabled employee and the union work together to find a suitable accommodation. Often, however, the process can become adversarial because of a lack of understanding regarding legal obligations or because the parties have not established a framework for working together. In this hands-on workshop, participants will review the legal groundwork for accommodation and will work collaboratively with the guidance of workshop leaders to design a model policy and process for accommodating workers with disabilities.

• Purposes and Responsibilities: What does it mean to work collaboratively? What are the employer’s obligations to accommodate a disabled employee? What role must the union play in the accommodation process? What is the employee’s role in the accommodation process? What is the proper scope of a joint accommodation policy?

• Identifying the Need for Accommodation: What is and is not a disability? When, if ever, are anxiety and stress disabilities? Obesity? Perceived addiction? What type of evidence should be requested to establish controversial disabilities such as chronic fatigue syndrome, fibromyalgia and chemical sensitivities? How do you identify employees who may have an undisclosed disability? How should you approach such employees about your concerns and possible accommodations?

• Privacy Concerns: What information may an employer legally request (and what must an employee provide) in order to assess appropriate accommodation? Is the employer entitled to the employee’s diagnosis, prognosis, or information on the employee’s treatment? Is medical information from an employee’s treating GP sufficient for accommodation purposes? When do you need information from a specialist physician? When is an independent medical exam appropriate? When can the employer ask an employee to see a physician of its choice? How should employers and unions treat employee medical information to protect the employee’s privacy as much as possible while still facilitating accommodation? Who in the employer’s organization should receive and review the medical information? Who in the union should receive and review the medical information? How can you ensure a non-discriminatory workplace by educating employees about the need to accommodate a disabled employee and still respect the disabled employee's privacy rights?

• Developing an Accommodation Plan: What are the important elements of a reasonable alternative position? The same rate of pay? Status? Core job functions? Location? What does it mean to “bundle” work duties? What role should the interests of co-workers play in determining what accommodations are available to a disabled employee? Should a junior employee be able to bump a senior employee out of a position? Should a disabled junior employee get to work a desirable schedule or in a desirable position that is usually seen as a reward for years of hard work? What if the disabled employee can only work light duty jobs? Should the employee be given a position comprised of bundled light duties?

• Undue Hardship: How do you determine whether an accommodation is an undue hardship? What factors should you consider? What are some examples of accommodations that constitute undue hardship? Is creating a new position an undue hardship? What about allowing an employee to work from home? In the case of an employee with an addiction, how many relapses must an employer tolerate? When will an accommodation have such a detrimental impact on the normal operation of the collective agreement or on employee morale that it will be an undue hardship?

• Return-to-Work Programs: Does the employer’s obligation to return a disabled employee to work end after the employee has been unable to work for a certain length of time? What are the elements of a successful return-to-work and stay-at-work program? How should you support the returning worker to ensure success?

• Dispute Resolution Processes: What are the benefits and pitfalls of putting accommodation issues on a separate track for dispute resolution? What types of dispute resolution mechanisms can be used to resolve accommodation issues before they become major problems? Mediation? Mediation-arbitration? Expedited arbitration? What process should employer and unions adopt for regularly reviewing accommodation policies and procedures?