The Invisible Disability: The Challenges Of Accommodating Psychological Disabilities Maureen M. Quinlan Hicks Morley Hamilton Stewart Storie LLP
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
The Invisible Disability: The Challenges Of Accommodating Psychological Disabilities
Maureen M. QuinlanHicks Morley Hamilton Stewart Storie LLP
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Roadmap• Duty to Accommodate• Accommodating Psychological Disabilities• Multi-party Obligations• Medical Requests• Responding to Requests for Accommodation • Caselaw Examples
• Getting it Right, Getting it Wrong• Practical Strategies
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
OHRC Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions• Released June 2014• Detailed discussion of the duty to accommodate
• Procedural and substantive• Stresses the importance of respect for dignity,
individualization and participation in the accommodation process
• Policy, not law
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Duty to Accommodate• When is the duty triggered?• Multi-party obligations• Procedural and substantive components• Individual assessment• Extent of the duty
• Undue hardship• BFOR• Duration
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Accommodating Disabilities
• Identification• Physical and psychological
• Understanding medical evidence• Restrictions
• Modification• Current job or other roles
• Ongoing assessment
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Definition of Disability• Human Rights Code definition of disability is expansive:
• Ontario - s. 10(b) of the Human Rights Code - condition of mental impairment or developmental disability
• s. 10(d) - a mental disorder • Common examples:
• Depression• Bipolar disorder• Stress/anxiety (in some cases)
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Psychological Disabilities
• Among the most difficult to identify and address in the workplace
• Often invisible• Differential effect of particular illness, treatment regime
and the individuals ability to cope• Subjective assumptions and stereotypes
• Presents a unique set of challenges
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Accommodating Invisible Disabilities
• Information required to trigger the duty to accommodate:• Low-threshold – whether the employer knew or
ought to have known that the employee has disability-related needs that require accommodation
• Obligations on all parties involved; employer, employee and union (if applicable)
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Obligations On Employees
• Remains a multi-party obligation• May still require employees to provide appropriate
documentation• Cooperate in the accommodation process• Cooperate with treatment • Meet the standards once accommodation has been
provided
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Obligations On Unions
• Act as a conduit for obtaining medical information • Provide independent advice• Assist in exploring accommodation• Obligation to cooperate
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Obligations On Employers
• Employers cannot turn a blind eye to signs• Must be pro-active in making inquiries of employee
• Krieger v Toronto Police Services Board, 2010 HRTO 1361
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Duty To Inquire
• No Blind Eyes• Does employee exhibit atypical or inappropriate
behaviour?• Is there a relationship between a disability and the
employee's job performance?• Gaisiner v. Method Integration 2014 HRTO 1718• Lee v. Kawartha Pine Ridge 2014 HRTO 1212
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Access to Medical Information: The "when" and the "why"
Medical Absence(Proof of Disability)
"Are you really that sick?"
Return to Work(Proof of fitness to work)
"Are you really well enough to return and work?"
Accommodation(Proof of disability-related
"need")"Is this something you need because of
your ability or something you want because…"
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Access to Medical InformationEmployee's
Right to PrivacyEmployer's Right
to Manage the Workplace
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
What Medical Information Can Be Requested?
• Typically uncontroversial:• Nature of the illness
• Duration/Prognosis
• Restrictions/Limitations
• Basis for Medical Conclusions
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
What Medical Information Can Be Requested?
• Diagnosis?• Treatment Plan?
• Maybe
• Including medication and side-effects which may impact the job performance or other legitimate employer interests
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The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
What Medical Information Can Be Requested?
• Right to obtain a specialist opinion in certain circumstances• Independent Medical Examinations
• “Consensual” - securing consent by resistance• Under a collective agreement
• By order of a tribunal (arbitration/HRTO)• IMEs are not always a solution• One size questionnaires do not fit all situations!
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
What Medical Information Can Be Requested?
• Key Case on Medical Information Management:• Complex Services v OPSEU (2012, Surdykowski)
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Responding To Accommodation Requests
• Step 1: Sufficient medical information • No disability? No accommodation
• Step 2: Determine reasonable accommodation• Step 3: Ensure adequate support services
• Be conscious of managing stress• Consult with stakeholders before determining
accommodation would constitute undue hardship
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
How Far Must You Go To Accommodate?• Reasonable accommodation short of undue hardship• Cannot impose "no risk" standard• Must explore all reasonable options that would assist to reduce or
manage potential risks• Consider behavioural agreements requiring compliance with
recommended course of treatment• Ultimately, not required to expose employee, other employees or
members of the public to undue risk• Can't rely just on 3rd part adjudicator findings
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Exhausting The Duty To Accommodate
• Buttar v Halton Regional Police Services Board 2013 HRTO 1578
• New police constable subject to statutory 12-month probationary period, developed OCD
• High likelihood of relapse, failed to seek treatment
• No obligation to accommodate further
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Exhausting The Duty To Accommodate
• Buttar v Halton Regional Police Services Board 2013 HRTO 1578
• New police constable subject to statutory 12-month probationary period, developed OCD
• High likelihood of relapse, failed to seek treatment
• No obligation to accommodate further
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Consequences Of Not Getting It Right
• Hamilton Wentworth Board of Education v Fair 2014 ONSC 2411
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Consequences Of Not Getting It Right
• Laurentian University Faculty Association and Laurentian University (2015, Etherington)
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
The Practical Steps Is there a disability? what is the
extent of it?what are the restrictions?
Identify Restrictions are they clear
and current?are they
temporary or permanent?
Clarify Restrictions
from employee
from health professionals
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The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Key Takeaways – Employers Obligations
• Cannot turn a blind eye• Be pro-active and make inquiries
• Meeting needs not wants• Accommodation is problem solving
• Accommodation in same work first• Communicate and document
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Key Takeaways - Employees Obligations
• Disclose disability• Cooperate with reasonable
requests for medical information
• Cooperate with treatment• Cooperate with reasonable
accommodation proposals
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Key Takeaways – Union Obligations
• Act as a conduit for obtaining medical information
• Provide independent advice to the employee
• Assist in exploring accommodation options
The Invisible Disability: The Challenges of Accommodating Psychological Disabilities
Questions & Answers