Duty to Accommodate
A look at addiction and substance abuse in the workplace, with focus areas on the recent legalization of marijuana, and the duty to accommodate principles.
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.
Review of Complex Services Inc v Ontario Public Service Employees Union, alerting readers to the employee's responsibility to provide supporting medical documentation as part of the accommodation process; casino employer creating substantial attempt to clarify nature of disability.
Looks at the perspective of persons with disabilities to identify the factors that influence their employee duty of disclosure; concerns that are considered when deciding to disclose, such as the unfair negative stigma often received, isolation or lowered expectations; highlighting barriers in the workplace that should be removed in order to address and circumvent such disclosure considerations.
Contract law principles; frustration when no party to contract is at fault but the terms can no longer be fulfilled; discusses the cases in which an employee is absent and/or cannot work because of disability or illness lasting a long or unknowable amount of time; provides employers and employees with information on what tribunals have said on such matters.
Author discusses Central Okanagan School District v Renaud (1992) and encouraged cooperation between unions and employers to accommodate employee disabilities; however, subsequent tribunals have interpreted this as holding unions co-liable; author calls on SCC to clarify Renaud.
Contrasts two cases of non disclosure until after termination, with different results in respect to whether the employer was required to accommodate the employee. Context is important.
Outlines what is required by an employee to disclose as part of the accommodation process, as well as the employer's duty to maintain privacy of medical documents provided.
Conference presentation paper as part of the Workplace Rights & Accommodations Forum 2016, discussing the collaborative process involved in the duty to accommodate, with a focus on the required nature and extent of information disclosure.
Discusses the inter-connectedness of the concepts of duty to accommodate, Bona Fide Occupational Requirement and undue hardship. She argues that the duty to accommodate is part of the test for BFOR, within the process of justification required which is linked to the concept of reasonable necessity in step three of the Meiorin test. Discusses that the implication of the duty to accommodate, as established in the Meiorin test, requires considering alternative standards to the employers standard being questioned, which challenges norms and has the potential to affect substantive change.