Creativity, Reality,

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Creativity, Reality, PracticalityThe duty to
accommodate personswith disabilities in the
workplace

• Murphy Battista LLP
• Vancouver, BC
• Main 604-683-9621
• Toll Free 1-888-683-9621

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Dianna Robertson

• Occupational Therapist Lawyer

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What is Accommodation?

• The Goal

• The Concept

• Equality concept that seeks to build inclusive
  environments that respect the differences and the
  rights of a diverse society
• http//www.bchrcoalition.org/files/faq_DTA.html

• Seeks to eliminate barriers, standards,
  requirements, practices, policies and rules that
  adversely affect people on the basis of specific
  grounds

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Duty to Accommodate - Sources

• Statute

• Case Law

• BC Human Rights Code not mentioned
• Canadian Human Rights Act mentioned

• Supreme Court of Canada Cases mentioned
• BC Supreme Court Cases mentioned

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What the law says

• Where a barrier exists, or a policy or practice
  has adverse consequences on an individual in a
  protected group, the law says that the employer
  should reasonably accommodate that individuals
  difference provided they can do so, without
  incurring undue hardship, or without sacrificing
  a bona fide or good faith requirement of the job.
• http//www.bchrcoalition.org/files/faq_DTA.html

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Accommodation Protection For

• Race
• Colour
• Ancestry
• Place of origin
• Age
• Sex
• Physical or mental disability

• Sexual orientation
• Religion, marital or family status
• Political belief
• Criminal convictions unrelated to employment

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Duty to Accommodate

• Most often applies to persons with disabilities
• Examples
• Removing physical barriers
• Computer Screen Reader
• Work Station Ergonomics

screen reader reference https//www.google.ca/sea
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Limits to Accommodation

• Undue Hardship
• Bona Fide Occupational Requirements
• Conflicting Rights

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Undue Hardship

• Accommodation efforts must go to the point of
  undue hardship
• Factors Considered
• financial costs
• health and safety risks
• size and flexibility of the workplace

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Bona Fide Occupational Requirements

• 1. Employer must show

• Rule adopted for a purpose rationally connected
  to performance of job

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Bona Fide Occupational Requirements

• 2. Employer must show

• The rule was adopted in good faith in belief it
  was necessary for fulfillment of legitimate work
  related purpose
• Why was rule developed?
• When and by whom?
• What process used?

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Bona Fide Occupational Requirements

• 3. Employer must show

• The rule is reasonably necessary to accomplish
  legitimate work related purpose
• Employer must still carefully consider all
  reasonable options for accommodation

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Bona Fide Occupational Requirements?
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Conflicting Rights

• Cant replace discrimination of one person with
  discrimination against others
• Cant significantly interfere with rights of
  others

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Case Example

• Meiorin
• 1999 Supreme Court of Canada Case

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Case Example

• Grismar
• 1999 Supreme Court of Canada Case

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Case Example

• Youth Bowling Counsel of Ontario vs. McLeod
• 1994 Ontario Case

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Guidance for Employers

• Establish accommodation process that respects the
  dignity and the privacy
• Consider and facilitate the process of
  accommodation once request made
• Determine if a particular request is based on a
  protected ground of discrimination
• Confirm and secure additional relevant
  information necessary to assess the accommodation
  requirements
• Ensure an inclusive process that allows for
  multi-party participation
• Involve person seeking accommodation
• http//www.bchrcoalition.org/files/faq_DTA.html

• Consider and assess each accommodation request on
  an individual basis
• Be prepared to bear the cost of required medical
  information or other documentation
• Be willing to take substantial and meaningful
  measures
• Be flexible and creative. Aim towards
  identifying the best option suited to the needs
  of the individual, while respecting the privacy,
  the autonomy, and the integration of the
  individual
• Reply to requests in a reasonable time period and
  keep records of all actions taken

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Guidance for Employers

• Where possible, advise or inform your employer of
  your need for an accommodation
• Provide sufficient information as to why the
  accommodation is required
• Support your request by providing evidence and /
  or information
• make suggestions that would work for you (ie. a
  specific adaptive software or hardware device,
  extra sick days to allow for increased illness
  during pregnancy, etc.)
• how long the accommodation is required
• http//www.bchrcoalition.org/files/faq_DTA.html

• Allow a reasonable amount of time for your
  employer to reply or respond
• Always participate and cooperate in efforts to
  make the accommodation work
• Be flexible perfect
• If your requirements change, make sure you let
  management know
• If a solution is offered and you accept it, get
  it in writing
• If the process loses momentum, provide additional
  information that may help re-activate it
• If your employer claims they are unable to
  fulfill your request, ask for written details
  that explain the decision

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Reasonablevs.Perfect Solution
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Our Case Study

• Finding the just right accommodation

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Job Profile

• Housekeeper/ Maid at Remote Fishing and Hunting
  Lodge
• Office and Front Reception
• Full time hours
• Room and Board Included

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Worker Profile

• Chronic low back pain from chair accident
• Narcoleptic
• Vegan
• Celiac Disease
• Young offender B E

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Employer Profile

• Family run mom pop business
• 3 employees
• Limited finances
• No accommodation policy
• Require that all employees eat meat caught by
  guests

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Employee is Seeking Accommodations

• Dietary Gluten Free Vegan Diet
• Ergonomic Chair
• Tempurpedic Bed
• Split shift to allow for napping

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Further Questions?

• Dianna Robertson, MScOT, JD dr_at_murphybattista.com
• Direct 604-633-3809
• Main 604-683-9621
• Toll Free 1-888-683-9621