1. Creativity, Reality, & Practicality: The duty to accommodate persons with disabilities in the workplace Murphy Battista LLP Vancouver, BC Main: 604-683-9621 Toll Free: 1-888-683-9621

2. Dianna Robertson Occupational Therapist Lawyer

3. What is Accommodation? The Concept  Equality concept that seeks to build inclusive environments that respect the differences and the rights of a diverse society http://www.bchrcoalition.org/files/faq_DTA.html The Goal  Seeks to eliminate barriers, standards, requirements, practices, policies and rules that adversely affect people on the basis of specific grounds

4. 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

5. 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. http://www.bchrcoalition.org/files/faq_DTA.html

6. 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

7. Duty to Accommodate: Most often applies to persons with disabilities Examples:  Removing physical barriers  Computer Screen Reader  Work Station Ergonomics screen reader reference: https://www.google.ca/search?q=computer+screen+reader+for+the+blind&biw =1225&bih=787&source=lnms&tbm=isch&sa=X&ved=0CAYQ_AUoAWoVCh MI0LH2-NjqxgIVxSyICh0vfA6R#imgrc=jmLgw5sMF9zjcM%3A

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

9. 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

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

11. 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:

12. 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:

13. Bona Fide Occupational Requirements?

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

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

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

17.  Youth Bowling Counsel of Ontario vs. McLeod  1994 Ontario Case bowling aid reference: https://www.google.ca/search?q=good+faith&biw=1225&bih=787&source=lnm s&tbm=isch&sa=X&ved=0CAYQ_AUoAWoVChMIodnh493qxgIVRFuICh0rnQ 80#tbm=isch&q=disabled+bowling&imgrc=Nf-tK6hkLO8dXM%3A

18. 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 http://www.bchrcoalition.org/files/faq_DTA.html  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

19.  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 http://www.bchrcoalition.org/files/faq_DTA.html  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:

20. Reasonable vs. Perfect Solution

21. Our Case Study: Finding the “just right” accommodation

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

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

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

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

27. Further Questions? Dianna Robertson, MScOT, JD dr@murphybattista.com Direct: 604-633-3809 Main: 604-683-9621 Toll Free: 1-888-683-9621