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British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

Category Archives: Accommodation

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The Canadian Human Rights Commission publishes Impaired at Work: Guide to Accommodating Substance Dependence

Posted in Accommodation, Best Practices, Employer Obligations, Human Rights

The national epidemic of opioid abuse and overdoses is almost a daily feature in news media. Meanwhile, recent figures indicate that prescriptions for painkillers continue to increase in Canada.  It is in this context that the Canadian Human Rights Commission recently released a new guide: Impaired at Work: Guide to Accommodating Substance Dependence.  As stated at the outset of the guide, its purpose is “to help federally-regulated employers address substance dependence in the workplace in a way that is in harmony with human rights legislation.”

The definition of disability under the Canadian Human Rights Act includes “previous or existing … Continue Reading

Family status quo for British Columbia

Posted in Accommodation, Best Practices, Discrimination, Employee Obligations, Employer Obligations, Family Status, Human Rights, Litigation

Many employers and practitioners of human rights law in British Columbia (like us) have been following the Federal Court of Appeal decision in Canada (Attorney General) v Johnstone, expecting that, as in Alberta and Ontario, the BC Human Rights Tribunal may adopt Johnstone‘s broader federal human rights test for family status discrimination, which would displace the narrower BC test from Health Sciences Association of B.C. v. Campbell River and North Island Transition Society (Campbell River).  Although Johnstone was not raised directly in the decision, the BC Human Rights Tribunal recently declined an invitation to reconsider the Continue Reading

Illegal Toker or Legitimate Smoker? Marijuana-Smoking Employee Lawfully Dismissed

Posted in Accommodation, Human Rights

Given the increasing availability and use of medical marijuana in British Columbia, employers are often faced balancing the need to ensure a safe workplace and an employee’s right to legitimate medical treatment. A recent decision of the BC Human Rights Tribunal gives employers some welcome clarity on the limits of the duty to accommodate, the nature of bona fide occupational requirements (“BFORs”), and the legality of “zero tolerance policies” regarding drug use on the job.

In French v. Selkin Logging, the Tribunal dismissed a complaint brought by Mr. French, a heavy equipment operator for a logging company.  Mr. French … Continue Reading

Meeting the Duty to Accommodate – A Success Story

University of British Columbia reasonably accommodated researcher with severe mouse allergy

Posted in Accommodation, Discrimination, Human Rights

The duty to accommodate is a difficult process because it is uncertain. Whether an employer has met its duty to accommodate under human rights law requires an individualized assessment on a case-by-case basis. In addition, the standard of “undue hardship” is a high and moving target, and will depend on the employer’s size, nature of operations, resources and other relevant factors. A recent decision, however, may have moved the target closer to “reasonableness” than “the point of undue hardship”.

In Wilcox v. University of British Columbia, the British Columbia Human Rights Tribunal dismissed a human rights complaint from a … Continue Reading

Teachers’ Strike: What does it mean for your workplace?

Posted in Accommodation, Discrimination, Employment Standards, Family Status, Human Rights, Labour Relations, Unions, Wage and Hours

While talks continue, there is no immediate end in sight for the ongoing teachers’ strike. For employees with school-age children, this may mean facing a child care gap starting next week. As an employer, what are your legal obligations and what can you do to make sure work continues while school’s out?

The Legal Framework

First, the Employment Standards Act provides all employees in the province with up to five (5) unpaid days of family responsibility leave each year for the care, health and education of a child in an employee’s care.  Employers do not have the discretion to … Continue Reading

Duty to Accommodate Child Care Obligations? The Federal Court of Appeal Weighs In

The Federal Court of Appeal takes a “broad” approach to family status discrimination – with limitations – in two recent decisions

Posted in Accommodation, Discrimination, Employee Obligations, Family Status, Human Rights

What is an employer’s duty to accommodate an employee’s child care obligations? This topic continues to be a hot one in the workplace, as employers try to balance the need to retain talent and ensure a productive workplace.

Part of the problem is that “family status” is not defined in either the British Columbia Human Rights Code or the Canadian Human Rights Act. As a result, different approaches to what family obligations, if any, are protected by human rights legislation have emerged in various Canadian jurisdictions. As we have discussed in previous posts here and here, the British … Continue Reading

Damages for Injury to Dignity Significantly Increased by B.C. Human Rights Tribunal

Case signals Tribunal’s willingness to increase this kind of damages award in the future.

Posted in Accommodation, Damages, Discrimination, Human Rights

In Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302, the B.C. Human Rights Tribunal awarded the complainant, Dr. Carl Kelly, $75,000 in damages for injury to dignity. This is more than double the previous highest award of $35,000, set in Senyk v. WFG Agency Network (B.C.) Inc., 2008 BCHRT 376.

Dr. Kelly was a medical school graduate who had been diagnosed with ADHD and a non-verbal learning disability. Between November 2005 and August 2007, Dr. Kelly experienced significant difficulties integrating with and passing his residency program rotations. He continuously consulted a psychiatrist and numerous … Continue Reading

Human Rights Tribunal Takes On Forum Hopping

Does not further the purposes of the Code

Posted in Accommodation, Discrimination, Human Rights, Unions

The BC Human Rights Tribunal has breathed new life into the concept of what it means to further the purposes of the Human Rights Code with the result that employers have some hope in stopping forum hopping and serial litigation.  Mahdi v. Hertz Canada Limited could prove to be one of the Tribunal’s most important dismissal decisions yet.

Mr. Mahdi is a long time unionized employee of Hertz.  Over the course of about four years he pursued multiple  grievances about his vacation rights.  He had some success following hearings or by way of settlement.

Before the last of his vacation … Continue Reading

Where Are We With Alcohol and Drug Testing?

Time to review policy and procedure

Posted in Accommodation, Employee Obligations, Human Rights, Investigations, Occupational Health and Safety, Privacy

The recent Supreme Court of Canada decision about random alcohol testing has received a lot of attention, for good reason.  Now seems to be a good time to review where we are and what employers must do if they want to have an effective drug and alcohol policy.

As noted in earlier commentary on the Irving Pulp decision, the matter of drug and alcohol testing has been evolving for some years, and that is likely to continue as different facts generate different concerns.  In the meantime, employers have interests and obligations that demand the implementation of effective drug and alcohol … Continue Reading

Ambulance Service Failed in Duty to Accommodate

Manager also personally liable

Posted in Accommodation, Discrimination, Human Rights

The BC Ambulance Service failed in its duty to accommodate a paramedic who could no longer palpate a pulse because of his mulitple sclerosis.  The employee’s manager was also held personally responsible.

That was the decision of the BC Human Rights Tribunal after the employer had won an earlier case on judicial review.  We reported on the judicial review in an earlier post because it established the important principle that the duty to accommodate does not include an independent procedural duty.  The matter was sent back to the Tribunal to reconsider, and with that second look, the result is worse … Continue Reading

Childcare and Family Status Discrimination

Struggling to find the right test

Posted in Accommodation, Employee Obligations, Family Status, Human Rights

The Federal Court has weighed in on the side of broader application of family status discrimination.  Employers can expect more requests for accommodation of the choices their employees make about how they will meet their childcare responsibilities.

We have discussed this issue and reviewed the competing theories in an earlier post.  This most recent case (Johnstone) finds in favour of the mother who sought a fixed day schedule instead of the standard rotating shifts set by her employer, the Canada  Border Services Agency.  Her request was to fit her work schedule to the childcare that was available … Continue Reading

Month in Review

Posted in Accommodation, Age, Benefits, Compensation, Pensions, Damages, Discipline, Discrimination, Employee Obligations, Employment Standards, Family Status, Human Capital, Human Rights, Immigration, Investigations, Just Cause, Labour Relations, Litigation, Murphy's Laws of HR, Privacy, Recruiting, Termination, Unions, US vs.Canadian Employment Law, Wage and Hours, Workers Compensation, Wrongful Dismissal

The bloggers of BC Employer Advisor issued our first Month in Review to summarize our most recent posts.

Visit the summary here.

 … Continue Reading

Attendance / Absenteeism Management (Part II – Disability and Medical Information)

Posted in Accommodation, Discrimination, Employee Obligations, Human Rights, Privacy, Termination

In a previous post found here we considered the basic requirements for an Attendance or Absenteeism Management Plan.  This post looks at two key and vexing issues in particular.

 

 

 

 1. Disabled employees – an AMP must not:

(a) put their employment in jeopardy solely on the basis of absences due to disability,

(b) automatically or arbitrarily impose disciplinary consequences for a  failure to meet attendance expectations that are based on average employee absenteeism, or

(c) make them considered for termination as a result of non-disability
absences at an earlier time than employees without disabilities.

2.  Medical information Continue Reading

Attendance / Absenteeism Management (Part I)

Posted in Accommodation, Discrimination, Human Rights, Termination

Whether you call it an Attendance or an Absenteeism Management Plan, or anything else you may come up with, there are a number of legal requirements to meet.  This week we look at some of the basics.  Next week, we will look at the issues of dealing with disabled employees and getting medical information.

The Basics

An AMP must be carefully crafted with a clear understanding of the legal rights of employers and of absent employees.  It must be consistent with the collective agreement in a unionized workplace.  Those who administer the AMP must be well trained.  From the outset, … Continue Reading

Duty to Accommodate: How Important Is the Procedure?

Posted in Accommodation, Discrimination, Human Rights, Termination

Procedure is very important in the duty to accommodate, but there is no independent procedural duty that an employer must meet. That was the recent ruling of the B.C. Supreme Court in answer to a Human Rights Tribunal decision to the contrary.

The court rejected the holding of the B.C. Human Rights Tribunal that an employer could be liable for not treating an employee “fairly, and with due respect for his dignity, throughout the accommodation process” regardless of the outcome of the substantive inquiry. The court was clear:  Both the procedure of the accommodation efforts and the final results are … Continue Reading

Family Status Discrimination: How Broad Is It?

Posted in Accommodation, Discrimination, Family Status, Human Rights

Controversy over the proper test for finding discrimination on the basis of family status continues. The main contenders are

  • a change imposed by the employer causing serious interference with a substantial duty (the Campbell River test); and
  • any adverse effect (the Johnstone test).

To compare the difference in practical terms, consider childcare obligations. The first test will create a duty to accommodate only when an employee has a child with some special need which requires the personal involvement of the employee. The second test creates a duty to accommodate any parent who has any kind of childcare responsibility.

The first … Continue Reading