Duty to Accommodate
"Balancing Employer Policies and Employee Rights: The Role of Legislation in Addressing Workplace Alcohol and Drug Testing Programs", 46:1 Alberta L Rev 141
A brief discussion of pre-employment drug testing. Discusses the law on when a drug dependency is required to be accommodated, the justification for drug testing, and the workplace health and safety plans to support testing. It discusses when pre-employment, pre-access, random drug testing and zero tolerance policies are discriminatory. It discusses the implications of medical cannabis and recreational use. Discusses a decision where the lack of cannabis testing that could determine impairment was found to be undue hardship.
"Lost in Translation: The Disability Perspective in Honda v Keays and Hydro-Quebec v Syndicate" 3:1 McGill Journal of Law & Health 137
A critical examination of undue hardship standard for “non-mainstream” disabilities in employment law and labour law. Duty to accommodate does not require a fundamental change to the nature of the employment relationship. The applicability of human rights law in wrongful dismissal action and collective agreement grievance. A good summary of the basic principals of undue hardship.
"Disclosure of Disability Post Termination Won't Negate Dismissal for Cause" Hicks Morley
Discusses case of Bellehumeur v Windsor Factory Supply Ltd, ONCA, in which a terminated employee subsequently discloses a disability - decision states that no discrimination had occurred and employer's have a right to take disciplinary action as required.
"Disability Disclosure in the Digital Age: Why the Human Rights Tribunal of Ontario Should Reform Its Approach to Anonymized Decisions" 25 Journal of L and Social Policy 109
The article gives a significant review of the OHRT adjudication of requests for anonymity in disability cases and discussed the risk of disclosure. It further discusses the balancing of the open courts principle vrs. the right to privacy; the right to privacy vrs. freedom of the press.
"The Duty to Accommodate in the Canadian Workplace: Leading Principles and Recent Cases" Ontario Federation of Labour
Discusses leading principals of accommodation law. A review of the legal standard of accommodation and undue hardship. Reviews unions duties in the accommodation process and their potential liabilities. reviews Reviews case law on employees’ duty to participate in the accommodation process and under what grounds the employee can refuse the employer offered accommodation. reviews the duty to accommodate mental health and addiction disabilties and culpable vrs. non-culpable behavior. Brief discussion of perceived disability and drug testing. Reviews case law on employees privacy rights vs.
"Disability and the Implementation of the Accommodation Duty in the Canadian Workplace by Labour Arbitrators" as an updated version of his article published in R. Echlin & C. Paliare (eds), Law Society of Upper Canada Special Lectures 2007: Employment Law
General overview of main human rights values in employment; disability law; leading principles of accommodation, undue hardship , legitimate operational requirements of a workplace, responsibilities of unions in employment disputes; employees responsibilities.
"Open Court and Confidentiality: Can There Be a Balance in Light of our New Media Age?" Ontario Bar Association (OBA) - Human Rights Annual Update
Discusses the test for anonymity of decisions and the implications for disability.
"The Duty to Accommodate: Does the Origin of the Disability Matter?" Ontario Bar Association - Sections - Constitutional, Civil Liberties and Human Rights Law
SCC held the Quebec's rehabilitation act was subject to the Quebec Charter and therefore reasonable accommodation beyond that set out in the Rehabilitation Act is required by employers for persons with disabilities.
"A Doctor's Note a Day Keeps Employers at Bay", as Tab 13 of The Law Society of Upper Canada's Continuing Professional Development program June 20, 2017 titled The Six Minute Employment Lawyer 2017
Provides a concise description of the duty to accommodate, then moves to the common types of medical documentation requested by employers, examples of independent medical examinations; explains the relevant ORHC policies; the impact of privacy legislation and relevant cases.
"The Doctor's Role in the Accommodation Process - Employer's Right to Medical and Other Evidence", as Tab 4 of The Law Society of Upper Canada's Continuing Professional Development conference on June 16, 2016 titled The Duty to Accommodate in the Workplac
View of adjudicator's attempt to balance between right to privacy and right to information regarding accommodation needs; discusses cases where employee refuses to provide the necessary documents during the process.