Human Rights in the SAFE Workplace. Simon Gillingham Human Rights and Workplace Consultant City of Winnipeg #

Transcription

1 Human Rights in the SAFE Workplace Simon Gillingham Human Rights and Workplace Consultant City of Winnipeg #

2 Worker Rights Every worker has the following rights: Right to Know Right to Participate Right to Refuse

3 COMPETING RIGHTS Human Rights Legislation Paramount Status To be interpreted broadly Can t contract out of Human Rights

4 Edmonton police set to unveil official hijab that Muslim officers can wear on duty SOURCE National Post

5 Legal Basis The Human Rights Code 13, 14, 9 (1)(d), 9(2), 12 Court and Tribunal Decisions Meiorin Employment Services

6 Who is responsible for work accommodations? **Employer** Employee Union

7 Protected Characteristics? ancestry, including colour and perceived race nationality or national origin ethnic background or origin religion or creed, religious belief, religious association or activity age sex, including pregnancy, the possibility of or circumstances related to pregnancy gender-determined characteristics or circumstances other than those included under sex sexual orientation marital or family status source of income political belief, association or activity physical, or mental disability including reliance on a dog guide or other animal assistant, a wheelchair or any other remedial appliance or device New as of June 2012 : Gender Identity and Social Status

8 Pregnant or nursing workers must be informed of any risk that conditions in the workplace may pose to them or their unborn or nursing child. Where it is reasonably practicable an employer must take steps to minimize the exposure, or if alternate work is available that involves no risk or less risk, assign the worker temporarily to that alternative work. [same pay]

9 General Principles Respect for dignity Individualization Inclusion/Proactive Trial & Error Privacy legislation(phia) Dignity of Risk ALL ASPECTS!!

10 In Practice Proactive Reactive

11 PROACTIVE WELLNESS PROGRAMS FITNESS PASSES FOR EMPLOYEES ON LTD INCLUDE LTD EMPLOYEES IN TRAINING/ WORK EVENTS JOB Strengthening COACH ENCOURAGE WORK HARDENING PROGRAM BEFORE RETURN TO WORK GRACE PERIOD FOR PERFORMANCE

12 Employment broadly defined any aspect of an employment or occupation (pre-employment, promotions, employees on LTD)

13 Changes required at work? physical workspace, computer software job expectations, requirements, quotas scope of work, bundling hours of work, varied, PT

14 Challenges for Employer Defining Undue hardship is elusive Assessments must be individualized Medical information & privacy issues Employee can refuse to provide medical Cannot require employee to see physician Verifiable evidence vs. impressionistic Inconvenience not Undue Hardship Doctor Bias

15 Mental Health ISSUES Depression most frequent disability [2020] 1 in 4 Manitobans will have MH illness Anxiety, depression Stress claims Supervisor is cause Employee not cognizant Stigma Culpable versus non-culpable [performance & behavior] ADHD?? Post WCB injury recovery opiate addiction issues

16 Drug & Alcohol Testing Supreme Court decision 2013 Only test for cause Post incident Record as near miss and/or incident Pre-employment testing? Treat addiction as chronic disability New provincial impaired driving sanctions

17 DUTY TO INQUIRE Onus on Employer to inquire Duty to act Addictions Mitigating factors in discipline hearings Fact versus assumptions

18 Dignity of Risk Employee s Right to make decision Acceptable personal risk No undue risk to other employees No undue risk to public Workers Comp is No-Fault insurance No guarantee of absolute safety Verifiable vs. impressionistic Inherent to the job

19 In Meiorin vs. British Columbia (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R.) the Supreme Court referred to two inquiries to consider with respect to accommodation: (a) the procedure adopted by the employer to assess the issue of accommodation; and (b) (b) the substantive content of any accommodation offered [Liability attached to both!!]

20 Searching for an accommodated position

21 Changes required in a WORK environment? Physical facilities Reduced hours, part-time, work at home Alternate formats for communications Bundling Exceptions to policies (e.g. attendance) Uniforms, equipment, tasks etc. Dignity of Risk.

22 UNDUE HARDSHIP

23 Cost of doing business More than a mere negligible effort is required to satisfy the duty to accommodate. The use of the term undue infers that some hardship is acceptable. It is only undue hardship that satisfies this test Central Okanagan School Dist. No 23 v. Renaud (1992, Supreme Court of Canada)

24 NOT REQUIRED Fundamental changes to position Employee preference!! Paying for no work or unnecessary work Absolutely everything possible Complete unfitness for work for the foreseeable future Ignoring previous accommodations made

25 FACTORS financial cost impact on collective agreement morale interchangeability size Safety BFOQ

26 Bona Fide Occupational Requirement Good Faith and rationally connected? Impossible to Accommodate Evidence of investigating alternatives Consulted with experts Systemic implications Universal or inclusive

27 B.F.O.Q. Bona Fide and reasonable discrimination does not extend to allow for the failure to accommodate based on 9(2) characteristics.

28 F.A.Q. How long does obligation continue? Pay issues Accommodate in higher classification Seniority transfer Eligible for promotion After the accommodation Unionized workplaces i.e. cross union Posted vacancies Attendance management Accommodation funding [WCB, EPB,CPP]

29 PRE-EMPLOYMENT Applicant not required to disclose disability Physical testing must be related to job Individized testing required If disability disclosed obligation to accommodate Review systemic barriers Section 11 of The Code Diversity

30 Case Law CITY OF CALGARY vs. CANADIAN UNION OF PUBLIC EMPLOYEES (CUPE 37) Medicinal marijuana in safety sensitive work.

31 Case law Firefighter Ont. [Davis] Safety gear [Steel toe] Paramedic driver s license [Cassidy- MS] Hearing impaired teacher London Transit