Fulfilling the Duty to Accommodate: A step-by-step guide

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Event date: 
Monday, May 30, 2016 (All day)
Name of Organization: 
Lancaster House Publishing

Pre-Conference Workshop

Monday, May 30, 2016

Fulfilling the Duty to Accommodate: A step-by-step guide

9:00 AM - 4:00 PM

Workshop Summary

Employers, unions and employees all have unique roles to play in the assessment and implementation of workplace accommodations. This interactive workshop will explore collaborative approaches to establishing effective accommodations, including collecting appropriate medical information, modifying the workplace, and addressing undue hardship issues. Lancaster's experts will discuss accommodations which have been successful in various types of workplaces, providing practical guidance on the following issues:

  • The duty to inquire and the duty to disclose: What information does the employer need to have before the duty to accommodate is triggered? What is the employer's duty to inquire into an employee's need for accommodation if it suspects the employee may require it on the basis of disability, religion, family status, or another ground? What is the nature of the employee's obligation to reveal the need for accommodation? What is the legal effect of an employee not disclosing a need for accommodation until discipline has been threatened or imposed?
  • Medical information and privacy: What is the scope of the medical information to which an employer is legally entitled for the purposes of accommodating an employee in productive work? How should employers and unions balance the need for medical information against the privacy rights of employees during the accommodation process? Is an employee obligated to disclose his or her treatment or prognosis information to the employer? What information does an employee on leave need to provide the employer in order to trigger the duty to accommodate the employee's return to work?
  • Implementing accommodations: What provisions should be made in attendance or performance management policies for employees who require accommodation? How should the union participate in the accommodation process? What obligation does an employee have to participate in the accommodation process? What consequences may flow if an employee is uncooperative? What are some examples of helpful accommodations for employees who are suffering adverse treatment on the basis of disability, religion, sex, family status, or age?
  • Occupational requirements and undue hardship: How can workplace parties determine what elements of a job are bona fide occupational requirements? When will modifications to the workplace or the time and manner in which work is performed create undue hardship for the employer or the union? What criteria should be considered in determining undue hardship: Impact on health and safety? Decrease in productivity or morale? Seniority provisions?
  • Disability-related misconduct: What steps should an employer take if it suspects that an employee's disability has contributed to misconduct? Is an employer required to investigate whether disability played a role in an employee's misconduct prior to imposing discipline? What happens if the employee denies that the misconduct is disability-related? Should the "hybrid approach", which distinguishes between culpable and non-culpable factors, be applied when determining whether discipline is appropriate? When will an employer reach the point of undue hardship in accommodating an employee with a mental health disability or substance use disorder that results in misconduct?