Human Rights in the Workplace

2009-2010 Manitoba Human Rights Commission Course List

The course list for the 2009-2010 'training season' at the Manitoba Human Rights Commission has just been finalized.  As usual, there is a terrific line-up of courses that you can take taught by Commission staff, the Commission's legal counsel and, yours truly.  On tap this year for me are my usual courses on "How to Investigate a Human Rights Complaint" and "Reasonable Accommodation in the Workplace."  These courses fill up fast so if you haven't had a chance to attend yet, I'd encourage you to call the Commission as soon as you can to sign up.  Download Education brochure 2009 2010.

For those of you who have been asking about other courses I might be teaching at the Commission I'm happy to announce that I've spent my summer putting together a brand new course that I think will be a great addition to the Commission's current line-up.  Called "Workplace Human Rights Complaints: myths, fears & realities", I'm going to be covering a whole range of common topics that I come across in the work I do on a daily basis and which I find that human resource specialists, managers and employers struggle regularly with.  My goal is to dispel the myths and fears associated with workplace human rights complaints, and let you in on the real truths.  Here's what we'll be discussing:

• legal liabilities of employers for human rights-related misconduct in the workplace
• ways in which a human rights complaint can come to your attention in the workplace (some obvious, some not so!)
• what to do if you become aware of what you think is a human rights complaint (learn what you need to do to help prevent legal liability)
• how to decide whether a human rights complaint needs to be investigated (the questions you need to ask yourself before jumping head-first into or avoiding an investigation)
• essential elements of a good investigation
• liability issues relating to the poor handling of investigations
• the top 8 fatal mistakes employers make when faced with a workplace human rights complaint
• what to expect when the Human Rights Commission gets involved (what really happens)
• my top 5 tips for dealing with the Commission.

The course has been structured to be an open dialogue with quick quizzes and test-your-knowledge scenarios to ensure you leave with a solid understanding of the material.  I'll also save time for those "I've always wanted to ask this about the Commission but didn't know who to ask" questions that may have been plaguing you for years!  I hope you join me as I embark on this new course.  I'm only teaching it three times this session so if you're interested, please contact the Commission and sign up soon.

I know there are those of you who live outside of Manitoba or you otherwise can't make it to my courses but have been asking for access to my materials anyway.  Please note that I am currently working at getting my content together to start making my courses available online.  I'm still in the early stages of development but will keep you updated so you know when this becomes reality. 

 

Searching for an accommodated position: what's the process?

Last month, I was fortunate to have been asked to speak at the Current Issues in Disability Management Conference put on by the Rehabilitation Return to Work Partnership in Winnipeg.  It was a terrific opportunity to present to a group of people who are very knowledgeable in the area of accommodating disability in the workplace.

Following my presentation, I happened to get asked virtually the same question by two of the conference's attendees and so I decided that it would be worth a blog post to cover what I was asked.  Essentially it was this: 

when exploring how to accommodate a disabled employee, what process is an employer required to follow?

More particularly, discussion occurred around whether an employer just has to look at existing positions in its workplace in order to determine what might be available for an employee requiring accommodation due to disability or whether the employer has to go beyond that.

The general answer to this question flows from an Ontario Labour Arbitration case known as Ottawa-Carleton District School Board v. O.S.S.T.F..  The decision endorses a passage from an article by Professor Michael Lynk entitled Disability and the Duty to Accommodate: An Arbitrator's Perspective.  In that article, Prof. Lynk states that the duty to accommodate disability requires an employer to go beyond simply looking at whether an employee can be accommodated in a position already in existence in the workplace.  In particular, Prof. Lynk states (as noted in the Ottawa-Carleton decision):

"....the law obliges an employer to determine whether existing positions can be adjusted, adapted or modified, and whether there are other positions in the workplace that might be appropriate. This responsibility entails an assessment of all reasonable alternatives. To prove that its accommodation efforts were serious and conscientious, an employer is required to engage in a four-step process, which involves (1) determining if the employee can perform his or her existing job as it is; (2) if not, determining if he or she can perform his or her existing job in a modified or “re-bundled” form; (3) if not, determin­ing if he or she can perform another job in its existing form; and (4) if not, determining if her or she can perform another job in a modified or re-bundled form."

In keeping with this decision, I advise employers to do the following when assessing their ability to accommodate a disabled employee:

1. Ensure they have up-to-date job descriptions which accurately detail the duties of all positions in the workplace.  Operating on outdated job descriptions can impact an employer's ability to find accommodation and, ultimately, impair the ability to argue it has satisfied its duty to accommodate;
2. Review the employee's current job and ask:
   • What are the essential duties and non-essential duties of the current job?
   • Of the non-essential duties identified, can any of these duties be removed or reassigned?
   • Of the essential duties identified, what can the employee do/not do?
   •   What can be done to assist the employee perform the current job?:
     • can modifications be made to the way the job is done in its existing form?
     • can the employee be provided with particular equipment or support to enable her to perform the job?
     • can modifications be made to the work schedule or workload?
     • can the job be rebundled (reassembled to create a productive job)?
3. If it is determined that the employee cannot perform the essential or core duties of their current job even with accommodation, identify all other job possibilities in the workplace and ask:
   • What are the essential duties and non-essential duties of the jobs?
   • Of the non-essential duties identified, can any of these duties be removed or reassigned?
   • Of the essential duties identified, what can the employee do and/or what are they unable to do due to the restrictions of their disability?
   • Can the employee perform any of these jobs in their existing form?
   • If not, what can be done to enable the employee to perform any of the possible jobs in a modified or rebundled form? (see also questions under 2 above)

It is critical that, in doing this review of jobs, an employer adequately documents all steps taken in assessing whether it can or cannot accommodate a disabled employee, including the ultimate conclusion reached and the basis for it.  By following the process noted above and creating a proper paper trail, an employer will place itself in the best position possible to demonstrate it has legally fulfiled its duty to accommodate.