Human Rights and Accommodation Conference
Human Rights and Accommodation Conference
March 30 - 31, 2016
The Westin Harbour Castle
Wednesday, March 30, 2016
Registration and Hot Breakfast Buffet 7:45 AM - 8:45 AM
Introductory remarks by Co-Chairs8:45 AM - 9:00 AM
Employee Disabilities and the Duty to Inquire: Knowing what to ask, and when 9:00 AM - 10:00 AM
Panel SummaryAlthough an employee is generally required to identify a disability to trigger the duty to accommodate, an employer may in some cases have a duty to inquire into the employee’s health and whether accommodation is required. This session will explore the circumstances in which the duty to inquire is triggered and provide practical tips on how the subject should be broached.
- Defining the duty: What is the employer’s duty to inquire, and how far does it go? Does a union have a corresponding duty to make inquiries if it suspects an employee may have a disability requiring accommodation? If so, what is the extent of the union’s duty?
- Making appropriate inquiries: What are some practical tips and best practices for raising the potential need for accommodation with an employee? What are some common pitfalls to avoid? Are there any special considerations or tips for broaching the issue of accommodation when the suspected disability is substance dependency or a psychological disorder, such as an anxiety or mood disorder? How should employers and unions deal with the issue of denial in the face of evidence to the contrary?
- Poor performance: In what circumstances should an employer or union suspect that an employee’s poor performance is impacted by a disability that requires accommodation? Are there particular signs to look for? Should the issue of accommodation always be raised when an employee has performance issues?
- Absenteeism: What is the extent of the employer's duty to inquire into an employee's health if it suspects that a disability may be impacting his/her attendance? At what stage in the process should such an inquiry be made, and by whom? How should the subject be brought up? How does a delay in disclosure or refusal to disclose affect rights and obligations in the context of an attendance management program?
- Misconduct: Is an employer always required to investigate whether disability played a role in an employee’s misconduct prior to imposing discipline? In what circumstances have adjudicators found that an employer should have been aware that an employee’s misconduct was disability-related, triggering its duty to make inquiries? What are some practical tips for raising the issue of accommodation with an employee in this context?
Prescriptions for Obtaining Medical Information: Practical tips from practicing lawyers 10:00 AM - 10:45 AM
Panel SummaryIn this session, experienced lawyers will share insights on how to get the medical information you are entitled to and need in your capacity as an employer or union representative, while also respecting employee privacy. The panelists will address such questions as:
- Requesting necessary medical information: What medical information may an employer or union representative legally request? When can they ask for it? What information can be sought in an initial versus later request? What is the most effective way of requesting the information you need? Are standardized forms helpful? If so, what should and should not be on standardized forms? How specific should employers and unions be in their requests for information from physicians? What types of questions are likely to prompt physicians to provide useful as opposed to vague information? What should you do in response to a vague doctor's note that states, for example, that an employee "needs to be off work for three weeks due to workplace stress"? Should you ask for more specific information? If so, how? In what circumstances should you insist on an independent medical examination?
- Consulting the right healthcare professional: When do you need information from a specialist? Are there particular types of questions that general practitioners are ill-equipped or reluctant to answer? For mental health issues, is information from a family doctor sufficient, or should you seek medical information from a psychiatrist or psychologist? What relative weight should employers give to information from specialists, information from GPs and information from health care professionals who are not physicians (e.g. licensed counsellors, psychologists)?
- Protecting privacy: What information is an employer or insurer entitled to obtain from a doctor? What information is a doctor entitled to give without consent from the employee? How should the union or employer respond if the doctor discloses more of an employee's private health information than is necessary? Are employers free to share an employee's medical information with the employee's union in order to facilitate accommodation? What should employers and unions do to protect confidentiality of medical information in their possession? What steps are employers legally required to take to shield medical information in their possession?
BREAK (with refreshments)10:45 AM - 11:15 AM
Advice from the Experts: Mental health professionals discuss their role in the accommodation process 11:15 AM - 12:00 PM
Panel Summary Often an individual with a mental health problem will receive treatment from more than one professional. For example, he or she might see a psychiatrist for analysis or for adjustments in medication, a social worker or a psychologist for talk-therapy, and a family physician to monitor his or her general condition. In this session a diverse panel of experienced mental health professionals will discuss the ways in which their respective professions can assist workers, employers and unions in identifying workplace limitations associated with mental health conditions and help individuals with mental disabilities improve occupational functioning and succeed at work.
NETWORKING LUNCH12:00 PM - 1:00 PM
Demystifying the DSM: Key concepts in psychological diagnoses 1:00 PM - 1:30 PM
Panel SummaryThe Diagnostic and Statistical Manual of Mental Disorders, or DSM, is often referred to as psychiatry's “bible”; it is the authoritative text used by North American psychiatrists and psychologists to diagnose mental illness. In this session a mental health expert will provide an overview of the DSM that will assist union and management representatives to effectively use or challenge mental health information in the accommodation or litigation processes. Issues to be addressed include:
- Who is qualified to diagnose individuals with mental disorders using the guidelines in the DSM?
- Can a mental health professional make a valid diagnosis of a mental disorder without using processes or criteria contained in the DSM?
- What are some criticisms or weaknesses of using the DSM to diagnose mental disorders? Are there other psychiatric or psychological assessments that might be more helpful in the context of workplace accommodation?
- Do DSM diagnoses provide information that is useful to management or union representatives assessing a person’s ability to function in the workplace? For example, does the DSM provide a measure of impairment of ‘normal’ functioning?
- Why are two versions of the DSM, DSM-IV and DSM-5, currently in use? For the purposes of accommodation or litigation, does it make any difference which version is used to make a diagnosis?
- What is the process for making a DSM diagnosis? Does the process differ depending on the condition diagnosed? Does the process contain mechanisms to identify dishonesty or malingering? Should the accuracy of a diagnosis be questioned if a standard process was not followed to arrive at the diagnosis?
- What are the ‘codes’ used in DSM diagnoses? Do these codes provide any useful information for the purposes of accommodation or litigation?
Computers, Cell Phones, and Surveillance: Drawing the line between employees' privacy rights and management’s business interests 1:30 PM - 2:45 PM
Panel SummaryIn an age of rapid technological innovation, it is becoming increasingly challenging, and necessary, to draw a clear line between where the employer’s right to manage its workforce ends and the employee’s right to privacy begins. Join Lancaster's experts as they examine the intersection of business interests and employee privacy rights in contemporary workplaces, focusing on such issues as:
- Balancing employee privacy rights with management rights: Has the Supreme Court of Canada’s ruling in Irving Pulp and Paper affected the scope of, and arbitral approach to, management rights? Is a balancing of interests approach now mandated in all cases where employer rules impact on employee privacy rights? Are arbitrators in all Canadian jurisdictions now required to use a balancing of interests or “reasonableness” approach when assessing the admissibility of covertly obtained video surveillance evidence? How is the balance of interests being struck in cases where employers have attempted to mandate flu shots, or other infection-control measures that impact on employee privacy?
- Conducting computer surveillance at work: What is the status of an employee’s right to privacy in the workplace? How do the decisions in R. v. Cole and Jones v. Tsige affect the scope of privacy rights and the permissibility of employer surveillance in the workplace? Are employers permitted to monitor employees' computer/internet use at work? Can employers use internet-tracking technologies to investigate potential misconduct by employees? Can an employer install specialized software to track internet and computer use? What are the limits of the employer’s use of GPS or cellphone tracking technologies to monitor employees? Will personal information stored on smart phones, laptops or other devices that employees are expected to take home attract greater protection than information stored on computers that do not leave the workplace? How do the approaches taken by arbitrators compare with those of privacy commissioners on these issues?
- Monitoring off-duty social media use: Do employees have a reasonable expectation of privacy in their Facebook pages, Twitter accounts, YouTube postings, blogs, website postings, e-mails, or text messages? Can employers monitor employees’ social media accounts to make sure they are not making statements or engaging in activities that would harm the employer’s reputation? Does it matter if the employee restricts access to his or her social media pages through privacy settings? Is it permissible for an employer to pose as another person to gain access to an employee’s social networking site? Does an employer's tracking of employees’ social media use amount to the collection of personal information subject to privacy legislation?
BREAK (with refreshments) 2:45 PM - 3:00 PM
Major Caselaw and Legislative Update: Family status, damage awards, and more 3:00 PM - 4:15 PM
Panel SummaryLancaster's panel of experts will review the most significant cases and legislative developments from 2015 and early 2016, and examine how changes in the legal, social, technological, and political landscape may affect you in the coming year. Topics to be addressed include family status discrimination, damage awards, and medical marijuana.
END OF DAY ONE 4:15 PM
Thursday, March 31, 2016
Hot Breakfast Buffet 8:00 AM - 9:00 AM
Accommodating Competing Interests: Striking a principled balance between human rights and collective agreement claims 9:00 AM - 10:15 AM
Panel SummaryCompeting rights situations, in which one party's human rights claim conflicts with another party's legally protected rights, can present a complex challenge for employers and unions. This session will use real-life scenarios to explore the appropriate process for assessing, handling, and resolving competing rights claims, and provide an update on recent legal decisions in this area.
- Legal principles and framework: What are the main legal principles that should be considered when competing rights situations arise in the workplace? What are the key elements of the framework developed by the Ontario Human Rights Commission for addressing competing rights claims? Does this framework present a workable approach in practice? How might it be adapted to meet the needs of a particular workplace? Should other frameworks be considered? Should employers have a competing rights policy in place?
- Resolution models and tips: What type of alternative dispute resolution models should be considered for resolving competing rights claims? What are some practical tips for addressing friction that arises between co-workers in competing rights situations? How much information can be disclosed to co-workers without violating an employee's privacy?
- Human rights and fundamental freedoms: What steps should be taken if a worker expresses religious beliefs or requests a religious accommodation that appears to infringe upon the human rights of other employees, such as the right to be free from sex discrimination in the workplace? How have adjudicators resolved conflicts between a union/union member's freedom of expression in relation to workplace issues and the human rights of other employees, or the right to be free from unwelcome religious pressure?
- Human rights and collective agreement entitlements: How should employers and unions address an employee's request for disability or family status accommodation that conflicts with another employee's rights under the collective agreement, such as seniority rights? In what circumstances will an accommodation measure that interferes with collective agreement rights be found to constitute undue hardship?
- Competing accommodation requests: What steps should be taken by workplace parties in cases of conflict between accommodation requests, for example, if one employee's request for disability accommodation conflicts with another employee's family status accommodation? In unionized workplaces, should seniority play any role in resolving such conflicts?
BREAK (with refreshments)10:15 AM - 10:45 AM
Sexual Harassment on the Job: Tackling a persistent problem 10:45 AM - 12:00 PM
Panel SummaryA series of high-profile allegations in recent months have served to illustrate that sexual harassment, though often hidden, continues to pervade Canadian workplaces. In this panel, experts will discuss policies and practices that can reduce the likelihood sexual harassment will take place and ensure that incidents of sexual harassment are dealt with appropriately, promptly, and effectively, when they do occur. The panelists will also provide an update on current trends in damages awarded by arbitrators, human rights tribunals, and courts across Canada in cases of sexual harassment.
- Recognizing and responding to sexual harassment: What types of behaviour may constitute sexual harassment, and what are the different forms that it might take? How can workplace parties recognize when sexual harassment may be occurring? What legal obligations are imposed on workplace parties to report and respond to suspected or known sexual harassment? What changes to the law are being proposed by the Ontario government in its action plan to stop sexual violence and harassment? How would these changes interplay with current human rights obligations? What are the key elements that should be included in a workplace sexual harassment policy? Should domestic violence be included in such a policy?
- Investigating sexual harassment: What are some best practices to implement, and common pitfalls to avoid, in a workplace sexual harassment investigation? Is it necessary to consult an external investigator? What if the alleged harasser is a manager or high-level executive? How can the safety and security of complainants, respondents, and witnesses be guaranteed? What steps should be taken to ensure that complainants, respondents, and witnesses are protected from reprisals? Should an alleged harasser be removed from the workplace pending the outcome of the investigation? If so, should this be paid or unpaid? Can an employee be disciplined for remaining silent during an employer's sexual harassment investigation? What is the union's role during a harassment investigation? Should union representatives attend all investigatory interviews, as well as informal and formal meetings? What policies or best practices should unions put in place to respond to member-on-member harassment? Should unions conduct a parallel investigation when there are allegations of member-on-member harassment?
- Assessing damage awards: What factors guide adjudicators in determining the appropriate amount of general damages (for injury to dignity) in cases of sexual harassment? What is the typical range of general damages awarded by arbitrators and human rights tribunals in recent cases where the sexual harassment is considered to be particularly egregious? What is the typical range of such damages where the harassment is found to be less serious (e.g. in cases involving inappropriate comments)? How does the quantum of damages awarded by arbitrators and tribunals compare with the quantum awarded by courts?
NETWORKING LUNCH 12:00 PM - 1:00 PM
The StopGap Solution: Removing barriers to community access one step at a time 1:00 PM - 1:45 PM
Panel SummaryApproximately 15.5% of Ontarians live with a disability, a number that will continue to grow as we age. However, when you factor in family members, friends, caregivers, and co-workers, over 50% of Ontarians experience the reality of disability. A 2010 study by the Martin Prosperity Institute at the Rotman School of Management, titled "Releasing Constraints: Projecting the Economic Impacts of Increased Accessibility in Ontario", finds that improving inclusivity and accessibility in Ontario provides both economic opportunity and benefits and could increase the size of the provincial economy by almost $5 billion. Attend this keynote to hear about StopGap's colourful and innovative solution to addressing barriers in the community while raising awareness at the same time.
Personality Disorders in the Workplace: Fulfilling the duty to accommodate in challenging cases 1:45 PM - 2:45 PM
Panel SummaryWhile personality disorders have not received the same attention in arbitration and human rights decisions as other mental conditions such as depression or anxiety, they can profoundly impact an individual's ability to interact appropriately with co-workers and to function at work. In this session a mental health expert will provide an overview of personality disorders and experienced human rights lawyers will discuss the scope of the duty to accommodate individuals with these disorders in the workplace.
- The medical/psychological perspective: What are personality disorders? Is there a difference between someone with a 'difficult personality' and someone with a personality disorder? How do personality disorders differ from more familiar psychological disorders like depression and anxiety? How common are personality disorders in general? Why do we hear about personality disorders less often than we hear about other mental disorders? Are there any symptoms that are common across all or most personality disorders? What are the most common personality disorders? Which personality disorders are most likely to interfere with a person's ability to function at work? Are personality disorders diagnosed in the same way as other mental disorders? What are standard clinical treatments for personality disorders? How successful are treatments for personality disorders? How does the stigma associated with personality disorders differ from the stigma associated with more commonly diagnosed disorders such as depression and anxiety?
- The legal perspective: In what situations have arbitrators, human rights tribunals or courts recognized personality disorders as disabilities under human rights legislation? Are there situations in which adjudicators have refused to recognize a diagnosed personality disorder as a disability? In order for the duty to accommodate to be triggered, must an employee have a diagnosis of a specific personality disorder or is a diagnosis of "personality disorder not otherwise specified" sufficient? What if a psychologist or psychiatrist has simply noted "traits" of a personality disorder in an assessment? If an employee is involved in a pattern of conflict in the workplace, do employers have a duty to inquire as to whether the employee has a personality disorder? How can unions and workers establish a nexus between a personality disorder and behaviour that would otherwise attract discipline or discharge? Given that personality disorders tend to be long-lasting and that treatment is often ineffective, will employers find it easier to establish undue hardship in accommodating employees with personality disorders?
- Workplace challenges: What special challenges do personality disorders pose in the accommodation process? What are some reasonable accommodations for employees with different types of personality disorders? Are there effective strategies employers and unions can use to diffuse interpersonal conflict that might arise in the workplace as a result of an employee's personality disorder? Do employers and/or unions have a duty to be more sensitive in dealing with individuals with personality disorders that make them especially sensitive to criticism or allegations of wrongdoing? Do employers and employees have a legal obligation to use these strategies or can some behaviour associated with personality disorders simply be labeled as unacceptable? Is being a good "team player" a bona fide occupational requirement?
BREAK (with refreshments) 2:45 PM - 3:00 PM
Healing the Toxic Workplace: Innovative approaches to a poisoned work environment 3:00 PM - 4:00 PM
Panel SummaryBullying and harassment in the workplace can result in serious harm to targeted employees and the workplace as a whole, creating an environment poisoned by fear, distrust, and disengagement. In this practical session, Lancaster's experts will discuss proactive and non-adversarial strategies for cultivating a respectful work environment and remedying a workplace poisoned by bullying and harassment, addressing such questions as:
- Identifying a toxic work environment: What is the difference between a workplace in which some harassment or discrimination has taken place and a "poisoned work environment"? Is there a legal distinction? At what point does the workplace become a poisoned environment? How can managers and union representatives work together to identify when a workplace is at risk of becoming poisoned? What procedures should be established for encouraging early reporting and resolution of unacceptable workplace behaviour? What safeguards should be implemented to protect complainants, witnesses and accused employees against reprisals?
- Preventative approaches: What practical steps can employers and unions take to prevent workplace bullying and harassment? What are the best methods of cultivating respect in the workplace? What types of policies and programs are most likely to create a respectful and harassment-free workplace? What role do interpersonal skills and emotional intelligence play in a respectful workplace? Should workplaces implement training programs to teach interpersonal skills? Can emotional intelligence be taught? How can management and union leaders lead by example? What are appropriate leadership styles that cultivate respect in the workplace?
- Remedying a poisoned workplace: What are some examples of innovative rehabilitative measures that decision-makers and/or employers have implemented to cleanse poisoned workplaces? When is it useful retain the assistance of external experts, for example, relationship coaches and conflict resolution facilitators, to remedy a toxic work environment? What are the potential benefits and risks of using mediation, mediation-arbitration, or a restorative justice approach to remedy a poisoned workplace? What type of monitoring should be put in place to ensure that the workplace restoration program is succeeding? How should the union respond to reports of a bullying supervisor? How can unions balance competing interests in cases involving member-on-member harassment?
CONFERENCE ENDS 4:00 PM