Webinar Recap: Empowering the Labour Movement and Disability Rights

Employers must conduct a timely, responsive accommodation process. Among other things, employers must:

• Take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated;
• Communicate regularly and effectively with the employee with a disability, providing updates on the status of the accommodation and planned next steps; and,
• Implement accommodations in a timely way.

An employer’s failure to act with dispatch and due diligence may constitute a breach of the duty to accommodate, even if they eventually implement the requested accommodation.

The duty to accommodate requires employers to investigate accommodation measures and assess an employee’s needs. Accordingly, employers may request some personal information if it is necessary to fulfill their duty to accommodate.

Employers and employees with disabilities are both responsible for making the accommodation process successful.

Employers’ duties in the accommodation process include accepting requests for accommodation in good faith and taking an active role in examining potential solutions.

Employers may only request information if it is required to consider possible methods of accommodation. They are not entitled to information regarding the actual condition, prognosis, medication that might be taken or other personal confidential information. They are entitled to functional limitations that require accommodation.

Employees must make sure they can supply their employer with necessary information, including medical information. Employees must also communicate their needs to their employer, participate in discussions about solutions, and work with the employer on an ongoing basis to manage the accommodation process.

An employer may request that an employee sign a consent form to authorize the release of medical information from a treatment provider to an employer. However, in absence of a legitimate reason, an employee is not required to sign it.

If an employer requests medical information necessary to assess potential accommodation options, an employee is required to provide it. Employees can obtain necessary medical documentation by requesting it from their treatment providers.

Employers, employees and unions must cooperate in the accommodation process and exchange necessary information; however, that does not mean that an employer must be able to access medical records from a treatment provider directly. Accordingly, there would have to be a legitimate reason for an employer to require an employee to sign a release for medical information during the accommodation process.

Various privacy and other laws in Canada control the collection, use, and disclosure of health and other personal information. Employers can request that an individual seeking accommodation based on disability produce medical documentation and other information so that they can assess and determine reasonable accommodation options. Again, this should be kept to the functional limitation and not specific details of the condition or prognosis.

Employers are required to bear the cost of documentation requested for the accommodation process. As a best practice, get a written quote or invoice from your medical treatment provider and provide a copy to your employer and ensure they agree to pay the full amount before obtaining the requested form or record.

Despite this, there may be a need to have a discussion to clarify that the employer will pay for the assessment, so that all parties are clear from the onset. It should also be noted that in situations where the request comes initially from an employee for accommodation by way of a medical note after speaking to their doctor, this charge is usually incurred by the employee and not reimbursed. This would also be true where there is a need to certify an absence for sick leave. Costs covered by the employer should be paid if they are requesting the additional information.

The DTA is a three party process, where the employer, employee and union all work together to find suitable accommodation. In situations where there is difficulty in getting the necessary information about medical limitations, it is important that this is communicated so that options can be found. Sometimes, a clinic can be visited, or in other circumstances an independent medical examination could be conducted. It is important to have this information to ensure an accommodation is found so that the employee can work safely.

The Union generally would participate and assist in obtaining an appropriate accommodation.

PIPSC ensures adherence to the legislation and collective agreement by participating in the accommodation process for individual members.

PIPSC has negotiated in all of its collective agreements a clause that prevents discrimination for any of the prohibited grounds covered by the various Human Rights legislation. Should the employer not comply with their obligations in a particular situation, the Institute will represent the member with their concern, to ensure that their rights are protected and that they are properly accommodated. Should this fail, they have the ability to use the available tools to challenge the employer, i.e. a grievance, or other available mechanisms.

PIPSC also participates in consultation with the employer and if there are shortcomings as it relates to the DTA, they can address them more generally in that forum.

The duty to accommodate and the standard of undue hardship are different, although they are connected.

Employers have a duty to accommodate employees based on a protected ground of discrimination (for example, disability, religion, family status, etc) to the point of undue hardship. Therefore, if an accommodation would impose undue hardship on an employer, they are not required to provide it.

The standard is high; employers are expected to bear some hardship before they can show undue hardship.

Under the Canadian Human Rights Act, employers can only establish undue hardship by showing excessive financial costs or significant health and safety risks. The excessive costs or health and safety risks cannot be speculative or based on assumptions.

Undue hardship is a standard that specifically relates to accommodation requests. As an employer, TBS must provide reasonable accommodations that are necessary due to disability or another protected ground to the point of undue hardship.

Importantly, employers are not required to provide the employee’s preferred accommodation. But, they must offer a reasonable accommodation that meets the employee’s needs. In some circumstances, telework will constitute a reasonable and necessary accommodation.

Speak to your steward about your accommodation needs.

Yes, the duty to accommodate is a fundamental obligation recognized by federal, provincial and territorial human rights laws.

Overall, the duty to accommodate describes an employer's legal obligation and the circumstances under which that obligation is triggered. The phrase is not defined by a specific procedure; the process may look differently depending on various factors, including the workplace, the employee's accommodation request, and more. The accommodation process can be informal or very formal.

The duty to accommodate automatically arises when an employer knows an employee requires accommodation based on disability or another protected ground. Further, employers have a duty to inquire if they perceive or should have perceived someone as unwell or having a disability. In that instance, the employer must inquire if the person has needs related to a disability and offer assistance and accommodation.

The desired outcome of the accommodation process is a collaborative one. It's about the employer and employee coming together to identify an accommodation that meets the employee's needs.

Functional limitations vary from person to person, and depend on a variety of circumstances, please note the list below is not exhaustive and not intended as legal or medical advice.

If you are having difficulty identifying or naming your functional limitations, consider speaking with someone you trust, such as a healthcare provider, an ERO, friends or family to help you identify your impairments and potential accommodations that could help you overcome them.

Yes, it is possible to obtain an accommodation to have a flexible work schedule, and/or tolerance of work absence for medical appointments. What constitutes a reasonable accommodation will vary depending on each individual’s needs associated with their disability(ies).

It is within the right of the employer to periodically seek updated medical information from time to time when an employee has been accommodated for an extended duration. An OFAF is generally the form required to obtain the necessary information. As medical conditions and functional limitations can change over time, this will help to ensure that the accommodation is still suitable and to add any new measures that might be necessary.

The return to office directive provides a good opportunity for the employer to understand your limitations and to assess if the accommodation is still necessary.

Employers must accommodate disabilities to the point of undue hardship. Employers can demonstrate undue hardship by showing that the accommodation cost would be too substantial. However, the employer’s reliance on cost cannot be based on their speculation or impression of the costs associated with an accommodation. Employers must quantify the cost associated with the accommodation and consider other relevant costs, benefits, or deductions to show that an accommodation’s cost is excessive.

If, after a thorough assessment of costs, an employer can show that an accommodation would impose undue hardship, they must try to find the next best alternative that would accommodate your needs. If you encounter this situation, speak to your steward or Employment Relations Officer (ERO).

Notwithstanding the workplace conditions described above, the employer does still have their duty to accommodate and must take measures to address an individual employee’s needs.

As it relates to more general concerns over policy and physical workspaces, etc. that could potentially make accommodation needs more prevalent, there are some avenues to have these addressed. PIPSC participates in Union Management consultation meetings with the employer, where this could be discussed and addressed. We also sit on Health and Safety Committees, where systemic issues could be resolved.

When it comes to accommodation, the duration will depend on what the requirement is for the individual based on their functional limitations provided by their medical practitioner. Sometimes there is a temporary need, where there is an expectation of a recovery/improvement after some time, while other times the limitations are deemed to be permanent and consideration must be made in that regard. The rights to be accommodated are not changed by the duration.

The duration of the accommodation is good information to provide the employer, as it will help in the process of finding what might be the most suitable accommodation measures.

At its core, the DTA requires that an employee’s functional limitations be accommodated based on medical information provided. Though arbitrators and the courts have looked at other factors, the DTA still requires that any barriers from participating in the workplace fully that are created by limitations be addressed.

The grievance process is established by the relevant collective agreement that applies to the employee. The process varies from agreement to agreement, but each one stipulates the number of days an employee has to file a grievance, to have it heard at each level, the time allotted for the employer to provide a response and a number of days to transmit to the next level, if the response is not satisfactory.

Despite these provisions included in the collective agreements, the duration of the process can range, depending on the circumstances. On average, it can range from 2-4 months, but is certainly dependent on the situation.

If a matter needs to be referred to arbitration, this would add additional time and can take years to be completed.

The Accessibility Passport Program still uses a model of functional limitations, as those are essential to determine what accommodation measures are necessary.

The Program is aimed at providing a place where there can be tracking of needs, discussions and accommodation measures necessary for a particular employee. It is meant to track the accommodation process to help ensure that measures are provided and not lost when changes to the employee’s situation occur. For example, the centralized information would be on hand if an employee were to change jobs and report to a new department or manager. They would not have to start from scratch for their accommodation needs, as all the information is at hand.

That is correct, as Federal Public Servants are Federally regulated, the Canadian Human Rights Act applies. Some PIPSC members do work for employers that are regulated Provincially, i.e. Ontario Medical Physicists, or the New Brunswick Crown Prosecutors groups. In these situations, the Provincial Human Rights legislation would apply.

Reasonable accommodation varies, as it depends on the particular situation with the individual requesting accommodation. This means that everything has been done to remove the barriers impeding the employee from fully participating in the workplace and is no longer subject to discriminatory behaviour. This is not determined solely by the employer, as agreement needs to occur among the parties that an accommodation is suitable. Other things that may be impacted by an employee’s accommodation needs, such engagement and career advancement, ought to be discussed to try and come up with a solution that is satisfactory. Any disagreement in these regards could be addressed via the grievance process.

As a general rule, it is preferred that medical information comes from the employee’s treating medical practitioner. This is usually the best source of information as they generally would have known the employee and knows what is best for their patient. Sometimes, it can be difficult to obtain the necessary information and other options may need to be considered, but the preference is to start with the employee’s doctor.

There isn’t necessarily a definition of what can be considered as timely when it comes to accommodation. There is of course the employer’s obligation to accommodate, but there are many variables that can impact how quickly it can be provided. Getting the appropriate medical information is essential, having discussions to see what might work, implementing them, etc. What to look for is that there is consistent progress into meeting their duty. Unreasonable or unnecessary delays would be what to look for…there needs to be an understanding that sometimes it takes time, but we don’t want the employer to be doing nothing. This is something that PIPSC ought to be involved with, if there is concern over implementation.

If the employer is failing to provide an employee with the required medical accommodations, this would be a situation where they ought to involve their union to address the situation. There are many complexities to this type of situation, so it would be best to discuss with a steward or ERO to determine the best steps to take to have the concern addressed.

This type of situation would form part of a discussion between the parties, i.e. the employee, employer and union, to be addressed. If through discussions, this cannot be addressed, a grievance may have to be considered.