Creativity, Reality, & Practicality: The duty to accommodate persons with disabilities in the workplace Murphy Battista LLP Vancouver, BC Main: Toll Free:

Dianna Robertson Occupational Therapist Lawyer

What is Accommodation? The Concept  Equality concept that seeks to build inclusive environments that respect the differences and the rights of a diverse society The Goal  Seeks to eliminate barriers, standards, requirements, practices, policies and rules that adversely affect people on the basis of specific grounds

Duty to Accommodate - Sources Statute  BC Human Rights Code – not mentioned  Canadian Human Rights Act – mentioned Case Law  Supreme Court of Canada Cases – mentioned  BC Supreme Court Cases – mentioned

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 individual’s difference provided they can do so, without incurring undue hardship, or without sacrificing a bona fide or good faith requirement of the job.

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

Duty to Accommodate: Most often applies to persons with disabilities Examples:  Removing physical barriers  Computer Screen Reader  Work Station Ergonomics screen reader reference: =1225&bih=787&source=lnms&tbm=isch&sa=X&ved=0CAYQ_AUoAWoVCh MI0LH2-NjqxgIVxSyICh0vfA6R#imgrc=jmLgw5sMF9zjcM%3A

Limits to Accommodation:  Undue Hardship  Bona Fide Occupational Requirements  Conflicting Rights

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

Bona Fide Occupational Requirements: 1. Employer must show: Rule adopted for a purpose rationally connected to performance of job

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? 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 Bona Fide Occupational Requirements:

Bona Fide Occupational Requirements?

Conflicting Rights:  Can’t replace discrimination of one person with discrimination against others  Can’t significantly interfere with rights of others

 Meiorin  1999 Supreme Court of Canada Case Case Example:

 Grismar  1999 Supreme Court of Canada Case Case Example:

 Youth Bowling Counsel of Ontario vs. McLeod  1994 Ontario Case bowling aid reference: s&tbm=isch&sa=X&ved=0CAYQ_AUoAWoVChMIodnh493qxgIVRFuICh0rnQ 80#tbm=isch&q=disabled+bowling&imgrc=Nf-tK6hkLO8dXM%3A

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  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

 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  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 Guidance for Employers:

Reasonable vs. Perfect Solution

Our Case Study: Finding the “just right” accommodation

Job Profile:  Housekeeper/ Maid at Remote Fishing and Hunting Lodge  Office and Front Reception  Full time hours  Room and Board Included

Worker Profile  Chronic low back pain from chair accident  Narcoleptic  Vegan  Celiac Disease  Young offender B & E

Employer Profile  Family run “mom & pop” business  3 employees  Limited finances  No accommodation policy  Require that all employees eat meat caught by guests

Employee is Seeking Accommodations:  Dietary – Gluten Free Vegan Diet  Ergonomic Chair  Tempurpedic Bed  Split shift to allow for napping

Further Questions? Dianna Robertson, MScOT, JD Direct: Main: Toll Free: