Presentation Transcript

1. Accommodation in the Workplace

   PROCESSES AND SOLUTIONS LORNE FOSTERSCHOOL OF PUBLIC POLICY AND ADMINISTRATION DEPARTMENT OF EQUITY STUDIES
2. Table of Contents Introduction A. Barriers B. Duty to Accommodate: principles, most appropriate accommodate, short of undue hardship C. Duty to Accommodate: Employment D. Types of Accommodations in the Workplace Foster – Workplace Inclusion Strategies
3. Human Rights in the Workplace Growth of “rights culture”; expectations of fair treatment Discrimination on enumerated grounds prohibited Intentional and unintentional discrimination prohibited – “direct” and “adverse effect” discrimination Remedial, rather than punitive, focus Enforcement: Human rights Commissions (and some other venues – e.g., labour arbitration) Foster – Workplace Inclusion Strategies
4. The Workplace in a Human Rights Framework The duty to accommodate is a legal standard, it is the law of the land Accommodation is built on:  Respect for dignity Treating people as individuals [individual needs approach] Removal of barriers Inclusive design Foster – Workplace Inclusion Strategies
5. Why Is The Duty To Accommodate Important? Ensures equality for disadvantaged persons Allows people to be evaluated in fair manner Enhances respect for the individual Fosters climate of tolerance Fosters a greater public awareness Protects workers from discriminatory attitudes Foster – Workplace Inclusion Strategies
6. Common Grounds for Accommodation People may need accommodation for different reasons – the most common grounds for a request are: Disability Creed Family status Sex-related (pregnancy & breastfeeding) Gender identity Gender expression Foster – Workplace Inclusion Strategies
7. Barriers … because of disability, age, having children, pregnancy or breastfeeding, or certain religious beliefs Physical Attitudes Systemic stereotypes, attitudes policies or practices that block out people Foster – Workplace Inclusion Strategies
8. Principles of accommodation Most appropriate accommodation Undue hardship Shared responsibilities

   The Duty to Accommodate

9. a. Principles of Accommodation Dignity: respect for dignity. Individualization: treating people as individuals. Inclusion: removing barriers and designing with many needs in mind so that everyone is included. Foster – Workplace Inclusion Strategies
10. Types Of Accommodation In employment the duty to accommodate requires adjusting the working conditions so people can continue to work when they are on code grounds. These needs can be accommodated through: Modified workspace Adjusting work standards Flexible work schedules, dress codes, or break times Modified changing facilities Foster – Workplace Inclusion Strategies
11. … accessible buildings and spaces Accessible buildings and spaces improve service for everyone. Consider: ramps, elevators, automatic doors and wider doorways accessible washrooms change-tables, family change-rooms Foster – Workplace Inclusion Strategies
12. … think of accommodation as … a process, not a one-time event a matter of degree, not all-or-nothing a range of possibilities Foster – Workplace Inclusion Strategies
13. … a range of accommodations … IDEAL NEXT BEST NEXT BEST LESS IDEAL Full accommodation that most respects dignity and can apply right away Phased-in full accommodation Accommodate after saving up Alternative accommodation: transfer to another job – temporary or permanent Foster – Workplace Inclusion Strategies
14. b. Most Appropriate Accommodation most respects the person’s dignity meets the person’s needs best promotes integration and full participation ensures confidentiality is different for each person Foster – Workplace Inclusion Strategies
15. c. Undue hardship is a defense under the Code some degree of hardship may be required considers all elements of the accommodation request Foster – Workplace Inclusion Strategies
16. … undue hardship considerations … costs outside sources of funding, if any health and safety, if any Foster – Workplace Inclusion Strategies
17. … costs and undue hardship For undue hardship, costs must be: quantifiable e.g. financial costs such as capital costs or operating costs; shown to be related to the accommodation; and so high that they change the nature of the business or cause it to go out of business Foster – Workplace Inclusion Strategies
18. . … assessing costs consider all costs related to the accommodation request; 2. explore ways to lower costs; 3. do remaining costs, if any, cause undue hardship? Foster – Workplace Inclusion Strategies
19. … ways to lower costs recover costs through normal business spread out across an organization grants, loans or funds from other sources apply accounting principles like amortization or depreciation creative or low-tech designs “Second Injury and Enhancement Funds” phase-in accommodation or save up for it Foster – Workplace Inclusion Strategies
20. … a business and costs How big is the organization? Can costs be recovered through normal business? Can other parts of the company take on part of the costs? Can money be saved up in a reserve fund? Foster – Workplace Inclusion Strategies
21. … outside sources of fundingand undue hardship Consider government and non-government grants, subsidies or loans: to make buildings accessible or for tax credits for making services available directly to persons with disabilities Foster – Workplace Inclusion Strategies
22. … health and safety requirementsand undue hardship May be set by: law regulations rules practice procedure Foster – Workplace Inclusion Strategies
23. … health and safety requirements and risks Modifying or excusing a health and safety requirements may create risks that have to be weighed If the risk after accommodation is big enough to outweigh the benefits of enhancing equality, this may be undue hardship Foster – Workplace Inclusion Strategies
24. . … assessing health and safety requirements and lowering risks Assessing the health and safety requirement: is the requirement bona fide (reasonable)? does it create a barrier for the person who is identified under the Code? if yes, can the requirement be adjusted or excused? Foster – Workplace Inclusion Strategies
25. . … assessing health and safety requirements and lowering riskscont’d Lower high risks where possible: by phasing in safety features, introducing new technology, adjusting job descriptions Foster – Workplace Inclusion Strategies
26. … remaining risk(s) after accommodation How serious is the risk? How does it compare with other risks? Is the person willing to take on a risk? what may happen, how often, to whom, how seriously it would affect people in some jobs, organizations, everyday life, society allow this choice where possible – “dignity of risk” person should fully understand the risk risk should not likely affect others Foster – Workplace Inclusion Strategies
27. … undue hardship is not about … business inconvenience or customer complaints collective agreements what others want or their views Foster – Workplace Inclusion Strategies
28. … undue hardship – key points the standard is high must be supported with real facts is different for each organization and situation costs, outside sources of funding, health and safety financial statements, budgets, data, expert opinion, information about accommodation and how the person asking for accommodation is affected For example, the standard for a supermarket would be higher than for a small family-run grocery stor. Foster – Workplace Inclusion Strategies
29. d. Accommodation is a shared responsibility Person asking: makes the request explains what is needed and why provides necessary information discusses solutions co-operates with experts meet work standards works with accommodation-provider during the process Foster – Workplace Inclusion Strategies
30. … it’s a two-way street Accommodation-provider: accepts explanation of needs respect the dignity of the person asking for accommodation assesses individual needs actively discusses and look for solutions considers undue hardship and options in a timely manner Foster – Workplace Inclusion Strategies
31. Employment

    C. THE DUTY TO ACCOMMODATE

32. a. The duty to accommodate and employment barriers in employment “bona fide occupational requirement” (BFOR) and “essential duties” of the job types of accommodation Foster – Workplace Inclusion Strategies
33. … barriers in employment barriers may be with: buildings policies procedures culture cooperation is needed to accommodate: hiring, promotions training … and in considering: benefits workplace conditions discipline schedules Foster – Workplace Inclusion Strategies
34. … in employment the duty to accommodate comes up when ... policies or requirements seem neutral, but when applied, create barriers or conflicts; or when assessing if the employee can do the essential duties of the job Foster – Workplace Inclusion Strategies
35. … BFOR and … Are the duties bona fide occupational requirements (BFOR)? connected to the job; made with the belief that they are needed for the job; and reasonably necessary for a work-related purpose Section 17 of the Code says that there’s no violation of the Code if the employer can’t accommodate because doing so would cause undue hardship Foster – Workplace Inclusion Strategies
36. … can do the essential duties, with accommodation If, yes, can the employee do the essential duties with accommodation)? Can the employee do the essential duties? if not, what accommodation is needed? Provide accommodation, then assess the employee again Foster – Workplace Inclusion Strategies
37. Types of WorkplaceAccommodation Physical modified workspaces: creating more space, using different equipment, adjusting equipment settings Janvier 2012 MARCH 6, 2012 Foster – Workplace Inclusion Strategies
38. Types of WorkplaceAccommodation Time attendance. leaves of absence. flexible work schedules, shorter break times or a compressed work week, job sharing Foster – Workplace Inclusion Strategies
39. …. types of workplaceaccommodation cont’d Job duties adjusted work standards other work options: is other work available soon? If not, is a new position possible? Would extra training be needed? Alternate work could be short-term or permanent. Foster – Workplace Inclusion Strategies
40. …. types of workplaceaccommodation cont’d Other accommodating return to work, to the point of undue hardship employee assistance programme Foster – Workplace Inclusion Strategies