PROCESSES AND SOLUTIONS LORNE FOSTER SCHOOL OF PUBLIC POLICY AND ADMINISTRATION DEPARTMENT OF EQUITY STUDIES

Introduction A.Barriers B.Duty to Accommodate: principles, most appropriate accommodate, short of undue hardship C. Duty to Accommodate: Employment D. Types of Accommodations in the Workplace 2Foster – Workplace Inclusion Strategies

 Growth of “rights culture”; expectations of fair treatment  Discrimination on enumerated grounds prohibited  Intentional and unintentional discrimination prohibited – “direct” and “adverse effect” discrimination  Remedial, rather than punitive, focus  Enforcement: Human rights Commissions (and some other venues – e.g., labour arbitration) Foster – Workplace Inclusion Strategies3

The duty to accommodate is a legal standard, it is the law of the land Accommodation is built on:  Respect for dignity  Treating people as individuals [individual needs approach]  Removal of barriers  Inclusive design Foster – Workplace Inclusion Strategies4

 Ensures equality for disadvantaged persons  Allows people to be evaluated in fair manner  Enhances respect for the individual  Fosters climate of tolerance  Fosters a greater public awareness  Protects workers from discriminatory attitudes Foster – Workplace Inclusion Strategies5

People may need accommodation for different reasons – the most common grounds for a request are:  Disability  Creed  Family status  Sex-related (pregnancy & breastfeeding)  Gender identity  Gender expression Foster – Workplace Inclusion Strategies6

 Physical  Attitudes  Systemic  stereotypes, attitudes  policies or practices that block out people … because of disability, age, having children, pregnancy or breastfeeding, or certain religious beliefs 7Foster – Workplace Inclusion Strategies

a. Principles of accommodation b. Most appropriate accommodation c. Undue hardship d. Shared responsibilities

1. Dignity: respect for dignity. 2. Individualization: treating people as individuals. 3. Inclusion: removing barriers and designing with many needs in mind so that everyone is included. 9Foster – Workplace Inclusion Strategies

In employment the duty to accommodate requires adjusting the working conditions so people can continue to work when they are on code grounds. These needs can be accommodated through:  Modified workspace  Adjusting work standards  Flexible work schedules, dress codes, or break times  Modified changing facilities Foster – Workplace Inclusion Strategies10

Accessible buildings and spaces improve service for everyone. Consider:  ramps, elevators, automatic doors and wider doorways  accessible washrooms  change-tables, family change-rooms 11Foster – Workplace Inclusion Strategies

 a process, not a one- time event  a matter of degree, not all-or-nothing  a range of possibilities 12Foster – Workplace Inclusion Strategies

IDEAL NEXT BEST LESS IDEAL  Full accommodation that most respects dignity and can apply right away  Phased-in full accommodation  Accommodate after saving up  Alternative accommodation: t ransfer to another job – temporary or permanent 13Foster – Workplace Inclusion Strategies

 most respects the person’s dignity  meets the person’s needs  best promotes integration and full participation  ensures confidentiality  is different for each person 14Foster – Workplace Inclusion Strategies

 is a defense under the Code  some degree of hardship may be required  considers all elements of the accommodation request 15Foster – Workplace Inclusion Strategies

 costs  outside sources of funding, if any  health and safety, if any 16Foster – Workplace Inclusion Strategies

For undue hardship, costs must be: 1. quantifiable e.g. financial costs such as capital costs or operating costs; 2. shown to be related to the accommodation; and 3. so high that they change the nature of the business or cause it to go out of business 17Foster – Workplace Inclusion Strategies

1. consider all costs related to the accommodation request; 2.explore ways to lower costs; 3.do remaining costs, if any, cause undue hardship? 18Foster – Workplace Inclusion Strategies

 recover costs through normal business  spread out across an organization  grants, loans or funds from other sources  apply accounting principles like amortization or depreciation  creative or low-tech designs  “Second Injury and Enhancement Funds”  phase-in accommodation or save up for it 19Foster – Workplace Inclusion Strategies

 How big is the organization?  Can costs be recovered through normal business?  Can other parts of the company take on part of the costs?  Can money be saved up in a reserve fund? 20Foster – Workplace Inclusion Strategies

Consider government and non-government grants, subsidies or loans:  to make buildings accessible or for tax credits  for making services available directly to persons with disabilities 21Foster – Workplace Inclusion Strategies

May be set by:  law  regulations  rules  practice  procedure 22Foster – Workplace Inclusion Strategies

Modifying or excusing a health and safety requirements may create risks that have to be weighed If the risk after accommodation is big enough to outweigh the benefits of enhancing equality, this may be undue hardship 23Foster – Workplace Inclusion Strategies

Assessing the health and safety requirement: 1. is the requirement bona fide (reasonable)? 2. does it create a barrier for the person who is identified under the Code? 3. if yes, can the requirement be adjusted or excused? 24Foster – Workplace Inclusion Strategies

Lower high risks where possible:  by phasing in safety features, introducing new technology, adjusting job descriptions 25Foster – Workplace Inclusion Strategies

How serious is the risk? How does it compare with other risks? Is the person willing to take on a risk?  what may happen, how often, to whom, how seriously it would affect people  in some jobs, organizations, everyday life, society  allow this choice where possible – “dignity of risk”  person should fully understand the risk  risk should not likely affect others 26Foster – Workplace Inclusion Strategies

 business inconvenience or customer complaints  collective agreements  what others want or their views 27Foster – Workplace Inclusion Strategies

 the standard is high  must be supported with real facts  is different for each organization and situation  costs, outside sources of funding, health and safety  financial statements, budgets, data, expert opinion, information about accommodation and how the person asking for accommodation is affected  For example, the standard for a supermarket would be higher than for a small family-run grocery stor. 28Foster – Workplace Inclusion Strategies

Person asking:  makes the request  explains what is needed and why  provides necessary information  discusses solutions  co-operates with experts  meet work standards  works with accommodation-provider during the process 29Foster – Workplace Inclusion Strategies

Accommodation-provider:  accepts explanation of needs respect the dignity of the person asking for accommodation  assesses individual needs  actively discusses and look for solutions  considers undue hardship and options in a timely manner 30Foster – Workplace Inclusion Strategies

 Employment

 barriers in employment  “bona fide occupational requirement” (BFOR) and “essential duties” of the job  types of accommodation 32Foster – Workplace Inclusion Strategies

barriers may be with:  buildings  policies  procedures  culture cooperation is needed to accommodate:  hiring, promotions  training … and in considering:  benefits  workplace conditions  discipline  schedules 33Foster – Workplace Inclusion Strategies

 policies or requirements seem neutral, but when applied, create barriers or conflicts; or  when assessing if the employee can do the essential duties of the job 34Foster – Workplace Inclusion Strategies

1. Are the duties bona fide occupational requirements (BFOR)? a. connected to the job; b. made with the belief that they are needed for the job; and c. reasonably necessary for a work-related purpose Section 17 of the Code says that there’s no violation of the Code if the employer can’t accommodate because doing so would cause undue hardship 35Foster – Workplace Inclusion Strategies

2. If, yes, can the employee do the essential duties with accommodation)? a. Can the employee do the essential duties? b. if not, what accommodation is needed? c. Provide accommodation, then assess the employee again 36Foster – Workplace Inclusion Strategies

Physical  modified workspaces: creating more space, using different equipment, adjusting equipment settings MARCH 6, 2012 Janvier Foster – Workplace Inclusion Strategies

Time  attendance. leaves of absence. flexible work schedules, shorter break times or a compressed work week, job sharing 38Foster – Workplace Inclusion Strategies

Job duties  adjusted work standards  other work options: is other work available soon? If not, is a new position possible? Would extra training be needed? Alternate work could be short-term or permanent. 39Foster – Workplace Inclusion Strategies

Other  accommodating return to work, to the point of undue hardship  employee assistance programme 40Foster – Workplace Inclusion Strategies