As I’m one of those kind of gals who likes to practice what she preaches, when I started thinking about redesigning my blog one of the issues that was top-of-mind was ensuring that my site was as accessible to as many readers as possible.   In other words, I wanted to be sure that just because you happen to have a disability or just because your abilities may be changing (due to aging, for example), you would not be limited, in any way, from understanding, interacting with or navigating the content on my site.

And so, for the past number of months I have embarked upon a quest to make my blog compliant with the Web Accessibility Initiative.  I sought out the tremendous guidance of Glenda Watson-Hyatt, a passionate advocate for web accessibility and a gold mine of knowledge and experience on that very topic.  In fact, Glenda has written an e-book on enhancing the accessibility of blogs (it’s free to download!) and has recently launched her Blog Accessibility Mastermind course in an effort to make the blogosphere accessible to everyone.    As Glenda has interestingly brought to my attention:

“Do you know that people with disabilities account for $175 billion in discretionary spending power in the United States alone? These individuals, a significantly under-tapped market, regularly face barriers preventing them from participating fully online…..

Consider the following:

• Much of the web is graphical. Individuals who are blind use text-to-speech screen readers, a technology requiring descriptive text for all and images. Are your graphics accompanied by alternative text?
• Online video and audio is increasingly popular. Individuals who are deaf or hearing impaired cannot hear audio content.
• Flashing ads are distracting and annoying to all. These ads — that onscreen flickering — are not merely irritating to individuals with epilepsy, they can trigger seizures.

These are only three of the many barriers to online activities for many people with disabilities.”

Armed with Glenda’s insights, I asked Doug Jasinski and his Skunkworks Creative Group team, the cracker-jack designers of my blog if they were up to the task of helping me meet my goal and they responded enthusiastically.  And so….drum roll please….I am happy to announce that my blog is now on target to meet the latest in web accessibility guidelines.

You know what the interesting part is?  It wasn’t at all difficult to incorporate the tweaks that needed to be made.  And it wasn’t an overly expensive proposition either.  Remember, after all, I’m just one gal operating a small business from Manitoba.  If I can do it, well, then certainly others can.  So, I’m going to stand on my teeny podium right now and put out a challenge to all of my readers to have a look at their own sites and blogs and see if they just can’t make these very same changes.  Your own readers, employees and customers will thank you for it.

Even though I find all of this change exciting, I’m also keenly aware from what Glenda has taught me that making websites and blogs accessible is an ongoing process.  Web technologies are always changing and “accessibility best practices” are continually being developed and discovered.  So, while I’m proud that, along with some very key people, I’ve raised the standard of my blog’s design to its current point, I know that it will need to evolve along with the overall growth and development of the web.

And, with that in mind, I would like to invite any feedback you might have regarding any accessibility issues you may be having with my new design.   Working together we can make this site a part of what I hope to see become an all-inclusive web.

[Image by Svilen Milev]

In some Canadian jurisdictions, anti-nepotism policies, or policies that are designed to exclude family members from the workplace just because they are family members, will automatically be considered prima facie discriminatory on the basis of family status or marital status (which ground applies will depend on the circumstances).  [I say some, but not all, jurisdictions because in Ontario, for example, an exception has been written into the Ontario Human Rights Code to permit such policies in particular circumstances].

If, however, you happen to run a business in a province like Manitoba where no such exception applies, and you wish to establish such a policy in your workplace you’re going to have to be able to demonstrate the policy is a bona fide occupational requirement.  Or, putting it very simply, that the policy is clearly necessary for your particular business.

So, how exactly do you figure out if your anti-nepotism policy (or the one you’re wishing to implement) is going to pass the mustard with a human rights commission?  Well, there are two cases I’ve come across that provide some helpful guidance on that front.  I thought I’d pass them along — why keep all this interesting stuff to myself??  It’s a longer post than usual, but hope that you will find it well worth the read.

Case #1:  Greater Victoria Public Library v. Canadian Union of Public Employees, Local 410 (Migliorini Grievance) (2004), 135 L.A.C. (4th) 38 (B.C.C.A.A.) (Jackson, Arbitrator)

FACTS:

• two sisters worked for the Greater Victoria Public Library.  The grievor was an auxiliary employee while her sister was a permanent employee.  Both were members of CUPE.
• In 1992, Library management decided that as it was becoming a larger institution and there were more and more family members on staff it wanted to be fair to everyone in how family relationships were handled.  As a publicly funded organization, Library management was concerned about the “significant potential for abuse, involving monetary compensation” if family members were allowed to be directly supervised by a close relative.  A Family Members Hiring Policy was established.  It provided that relatives of board members and of current library employees could be hired but not where there was a supervisory/subordinate relationship.  In such an instance, one of the employees would be “transferred to a comparable position in another department at the first opportunity.”
• The grievor worked for the Library for a number of years as a page and was a valued employee.  In 2001, she and her sister (who was a branch clerk) were both employees at a particular branch of the Library.  The grievor worked 30 hours a week Monday to Friday.
• The Branch Clerk Supervisor position was posted on a temporary basis to fill a maternity leave from September 2001 to June 2002.  The Supervisor was responsible for, among other things, scheduling the pages. The grievor’s sister applied for the position and was successful.  Her elevation to supervisor placed her and the grievor in a supervisory/subordinate relationship.
• In early September, the grievor was advised that, pursuant to the Policy, she would be transferred.  While efforts were made to find a suitable alternate schedule of hours for the grievor at another location, ultimately what was offered was a reduced number of hours involving work at two different library branches, one of which involved potentially physically difficult work for the grievor due to a previous workplace injury as well as increased travel.  The grievor was unhappy with the efforts made to find her alternative work, she felt she had been treated unfairly and she declined to accept the Library’s offer.  The grievor stopped working her usual schedule at the branch her sister worked at around September 20.  When she eventually did return to work it was at a few different branches of the library and on a schedule that she, for the most part, had arranged through her own efforts.
• Due to what she perceived as unfairness to the grievor, the sister resigned her position of Branch Supervisor.
• The grievor filed a grievance alleging that the Library’s Policy discriminated against her on the basis of family status.

DECISION:

• The arbitrator determined that the grievor was transferred simply because of her family status and that this constituted prima facie discrimination.
• The arbitrator conducted a review of previous cases that examined the application of anti-nepotism policies in the employment context, including the Supreme Court of Canada’s decision in Brossard and came to the following conclusions:
  • an anti-nepotism policy that has been unilaterally implemented by an employer and not agreed to by the union must be shown to be reasonable;
  • the fact that two employees are related is not enough to justify an anti-nepotism policy.  The relationship must be relevant to the ability of one of the individuals to perform their job duties;
  • in order to determine whether an anti-nepotism policy that is discriminatory on its face can be saved as a bona fide occupational qualification (“BFOQ”), the following questions should be asked:
    1. is the anti-nepotism policy, which was designed to avoid conflicts of interest, imposed honestly and in good faith?
    2. is the requirement that there be an absence of a conflict of interest between employees reasonably necessary to ensure the efficient and economic performance of the work?  The arbitrator focused on two criterion as needing to be satisfied in order to answer this question in the affirmative:
    • • whether the absence of real, potential or apparent conflicts of interest which the policy is designed to address is rationally connected to the employment;
      • whether the policy is properly designed to ensure it is met without placing an undue burden on family members to whom the policy applies.
  • An anti-nepotism policy that is justified as a bona fide occupational requirement may still be found to be discriminatory if it is applied in an overly rigid and unreasonable way. The particular circumstances of each situation must be looked at closely in order to determine how the policy should be applied in those circumstances and in light of the objective of ensuring conflicts of interest are avoided.  The employer must be able to show that it has accommodated the person to whom the policy applies to the point of undue hardship.
  • In applying the above tests to the grievor’s situation, the arbitrator determined that the policy could be justified as a BFOQ because:
    • The policy was imposed honestly and in good faith;
    • The policy was shown to be reasonably necessary:
    • There was a rational connection between the absence of a conflict of interest or an abuse of power for any supervisory employees in the performance of their duties and the Library’s desire to ensure it had fair employment practices and sound financial internal control procedures;
    • The policy was designed to limit its impact on the family members to whom the policy applied by: not excluding family members from employment with the Library; applying only to supervisory/subordinate relationships; simply requiring a transfer of one of the employees to another position rather than outright termination; protecting the transferred employee by requiring the new position to be comparable to the previous position and by recognizing it may take time to find such a position by only mandating a transfer “at the first opportunity”
  • However, the arbitrator further concluded that the policy was applied in a discriminatory manner in relation to the grievor because:
    • the employer rushed to transfer the grievor immediately rather than wait to the “first opportunity” to find her a position that was comparable in terms of hours of work, rates of pay and work schedule.  Overall, there was a failure on the part of the employer to make every possible effort and explore every possible option in an attempt to accommodate the grievor to the point of undue hardship;
    • the employer could have accommodated the grievor on a short-term basis by temporarily placing responsibility for any decisions about her scheduling, work assignments or direction in the hands of other senior employees at the branch;
    • the employer could have accommodated the grievor on a short-term basis by allowing the sisters to work together until a comparable position was found for the grievor.  The evidence showed that the scheduling of the pages was done by a formula rather than by the exercise of the Supervisor’s discretion.
  • The arbitrator held that the grievor was entitled to compensation representing the difference between wages she received after being taken off shift from the branch she worked at with her sister and wages she would have received had she remained working at that same branch.  The arbitrator retained jurisdiction to quantify general damages for violation of the grievor’s human rights if the parties were unable to agree on amount.

Case #2: 502798 N.B. Inc. v. New Brunswick (Human Rights Comm.) 2008 NBQB 390, aff’g in part (2007), CHRR Doc. 07-742 (N.B. Bd. Inq.)

FACTS:

• male employee was hired in April 2001 to work as a sales manager for employer, a waste management company that supplied portable toilets and performed septic tank services.  Male employee’s job required him to develop business amongst existing and new clients.  He could earn bonuses based on his sales figures.
• in January 2002, male employee became romantically involved with female office manager.  They moved in together a month later.  Although their relationship was common knowledge, at no time did the employer advise either the male employee or the female office manager that their employment might be in jeopardy as a result of their relationship.
• In September 2002, male employee was fired due to his common-law relationship with the office manager.  Employer concluded that because female manager was one of two financial control officers and was privy to confidential financial information, that placed her in a conflict of interest with the male employee as one of her duties was to input data regarding sales which were linked to employee bonuses.  Employer was of the view that the marriage-like relationship between the male employee and the manager was not an acceptable business practice and created an unacceptable business and financial risk.
• Male employee filed a complaint of discrimination on the basis of marital status.
• The New Brunswick Board of Inquiry concluded that a prima facie case of discrimination had been made out because:
  • Although living in a common-law relationship for only a short period of time, the employees in question were living in a relationship contemplated by the words “marital status” in the New Brunswick Human Rights Act;
  • The male employee was treated differently than other employees and terminated as a result of his relationship with the female manager and, as a result, was discriminated against on the basis of marital status
  • In applying the Meiorin test to determine if the discrimination was justified, the Board determined that the employer was unable to meet the test because:
    • The employer’s standard was that the female manager could not enter into a common law relationship with an employee due to the confidential nature of her position.  This standard was not rationally connected to the performance of the employees’ jobs;
    • There was no bad faith on the part of the employer in implementing its standard;
    • The standard was not reasonably necessary to accomplish the work-related purpose because the employer “overlooked relatively simple checks and balances” that could have been put in place to protect the business.  For example, the employer’s General Manager could have been asked to review the input of data relating to bonuses that the male employee might have been entitled to.
    • The Board ordered the employer to pay the male employee $2,000 in general damages, write the male employee a letter of apology and to participate in a one-day training course with the Human Rights Commission on the duty to accommodate.
    • The employer appealed the decision to the Court of Queen’s Bench.

DECISION:

• The Court found that the Board ruled correctly that the male employee and female manager were living in a common-law relationship and protected from discrimination on the basis of marital status;
• The Court disagreed with the Board’s analysis of the first step of the Meiorin test, ruling that the workplace standard at issue was to limit access to confidential information and to avoid creating a situation where the female manager could possibly be placed in a position of conflict between the interests of her employer and the interests of the male employee, who she was in a relationship with.  The purpose of the standard was identified as being to avoid unacceptable business and financial risks.  The standard was found to be rationally connected to the performance of the female manager’s job as her work involved inputting information that formed part of the basis on which the male employee’s bonus was calculated;
• Despite this error, the Court agreed with the Board’s overall conclusion that the employer could have accommodated the marital relationship here without incurring undue hardship.  As the General Manager already reviewed the female manager’s work, he could simply have specifically reviewed any data that would have affected the male employee’s bonuses.
• The Court upheld the damage award and the requirement of an apology letter but found that ordering the one-day training course was inappropriate.

WHAT TO TAKE FROM THE CASES:

1. The creation of anti-nepotism policies should be carefully considered by employers before they are implemented given their application will always give rise to a prima facie case of discrimination.
2. The fact that two employees are related will not be enough to justify application of an anti-nepotism policy.  The family or marital relationship in question must be relevant to the ability of one of the related individuals to perform his or her job duties.
3. Anti-nepotism policies should be designed to limit the impact on the affected family member.  A policy that overly favors the employer’s interests will not stand up to scrutiny.
4. Employers must be prepared to show that when they applied the policy, they gave consideration to the particular circumstances of the affected employee and they accommodated the affected employee to the point of undue hardship.  Rigid application of an anti-nepotism policy will cause an otherwise justified policy to fail.

That having been said, if you are currently a nursing mom or you’ve been a nursing mom and you feel that you have encountered discrimination in the workplace, feel free to post your comments here. If you’re an employer who has been uncertain as to how to address the needs of nursing mothers in your workplaces or you have concerns relating to such accommodations, I’d also invite you to post your comments.   This is an important discussion and I’d be interested in hearing about your thoughts and experiences.

“Interview Opportunity

The Manitoba Human Rights Commission is concerned about the lack of information the public has regarding women and breastfeeding.

Executive Director Dianna Scarth and Chairperson Jerry Woods are available for interviews regarding nursing mothers and human rights protections.

‘It is amazing that we still have to deal with this issue.  We hope to work with the City and other groups to bring awareness of the rights of breastfeeding mothers to the public, service providers and employers,’ says Ms Scarth.

Ms Scarth and Mr. Woods can also discuss one of the Commission’s latest publications Parents and Pregnant Women to clarify any other issues regarding the rights of pregnant and nursing mothers.”

If you have an interest in participating in this worthwhile project of the Commission, you should be in touch with Patricia Knipe, Communications Director at the Commission.  She can be reached at (204) 945-5112.

Back in 2007, when the body of law relating to the accommodation of family status in the workplace was still in its infancy, I did a post on what the state of the law was at that time.  Recently, I spoke at the Law Society of Manitoba’s Accommodation in the Workplace seminar and addressed my view on where things stand now.   As a result, I thought it a good time to provide you with an update.

In my 2007 post I spoke about the British Columbia Court of Appeal decision in Health Sciences Assn. of British Columbia v. Campbell River & North Island Transition Society (which I’ll refer to, in short form, as “Campbell River”) which established that limitations needed to be set regarding when an employee’s family obligations could trigger human rights protection.  The Court determined that a prima facie case of discrimination on the basis of family status could only be made out in the employment context when an employee could show that:

1. there had been a change in a term or condition of employment imposed by the employer; and
2. the change resulted in a serious interference with a substantial parental or other family duty or obligation.

The Court stressed that a determination of whether a prima facie case of discrimination on the basis of family status could be made out was dependent on the circumstances of each situation.

As I noted in my post back in 2007, while the Campbell River decision ruled the day in British Columbia given that it was rendered by that province’s highest court, some decision makers outside of BC took issue with the Court’s reasoning.  In particular, concerns were raised that what the Campbell River test required an employee to prove before he or she could establish a prima facie case of discrimination on the grounds of family status set the bar too high relative to and too differently from any other protected characteristic covered by human rights legislation.  In the more traditional prima facie case test, a complainant need only show that they have been adversely affected in the workplace, either by having a burden imposed on them or being denied an opportunity, and that this adverse effect can be tied to a protected characteristic (such as age, sex, religion, disability, etc.).

Interestingly, time has not healed all wounds.  Claims that have since been filed by employees either before human rights tribunals or arbitrators in grievance proceedings that they have been discriminated against by their employers on the basis of family status and require accommodation continue to be met with mixed results.  And, those decisions questioning the validity of Campbell River have not let up.

While there isn’t a definitive pattern established yet, it appears as though the Human Rights Tribunal of Ontario is rejecting adoption of the Campbell River test.  In its recent decision in McDonald v. Mid-Huron Roofing, no reference to the Campbell River test was made at all.  Instead, the Tribunal appeared to use the traditional prima facie case test to conclude that an employer’s refusal to allow an employee some additional time away from work to assist his wife in an urgent family situation was discriminatory on the basis of family status.   Ultimately, the Tribunal found that the employer had failed to appropriately consider whether it could provide the employee with additional time away from work and that the employer had failed to show that the employee’s absences up to the time of his termination had caused undue hardship to the company.

Beyond the different approach seemingly being taken by the HRTO to the determination of whether an employee can make out a prima facie case of discrimination on the basis of family status, some further cracks in the Campbell River test are starting to show elsewhere.  In I.B.E.W., Local 636 v. Power Stream Inc., 2009 CarswellOnt 7325 (copy of the decision available by subscription only), the Ontario Arbitration Board appears to have created a modification to the Campbell River analysis.  In particular, Arbitrator Jesin agreed with the prior criticism of Campbell River that it was too restrictive since it only allowed for a finding of discrimination when an employee proved that there was a change in a term or condition of employment imposed by the employer.  He agreed that a change in an employee’s family circumstances could also precipitate a conflict between work and parental obligations.  He stressed that an existing workplace rule that did not accommodate the employee’s change in circumstances may also be found to be discriminatory on the basis of family status in certain situations.   According to this “modified” Campbell River test, the following questions need to be asked in order to determine if a prima facie case of family status discrimination exists when an employee encounters work-family conflict:

1. what are the relevant characteristics establishing the employee’s family status?
2. what are the adverse effects complained of and is it reasonable to expect that [human rights legislation] offers protection against the particular adverse effect of the employer’s action on each employee?
3. what prompted the adverse effect on the employee — a change in the employer’s rule or a change in the characteristics of the employee’s family status?
4. what efforts has the employee made to self-accommodate the conflict [between work and family].  Have they rejected options at self-accommodation that they should reasonably be expected to have made?

Further west, the Alberta Human Rights Panel in a case called Rawleigh v. Canada Safeway recently continues the line of cases that challenge the very validity of the Campbell River test.  In that particular decision, although the Panel applied Campbell River to conclude that the employee had been discriminated against by his employer on the basis of family status and that there was a failure to accommodate, it took a swipe at the BC Court of Appeal’s reasoning in Campbell River. In particular, the Alberta Panel strongly questioned the need to limit the prima facie case test in relation to the accommodation of family status and even went so far as to suggest that the Campbell River test itself may well be discriminatory.

In addition to talking about the cases above, as part of my presentation I also put together what I call a “Case Law Snapshot.  It is in table format and sets out the main cases on the duty to accommodate family status in the workplace that I am aware of that have been decided since Campbell River in 2004.  It breaks the cases down on the basis of whether they followed the Campbell River test or took a different approach.  It will provide you with a better sense of the “great prima facie case debate” I see occurring in the law.  I urge you to have a read.

So, what should you take from the cases at this point?  Here are my current thoughts:

1. Although Campbell River remains the only appellate court authority on the subject of what constitutes prima facie discrimination on the basis of family status, there is a growing body of decisions that give rise to questions about Campbell River’s value as precedent.  It appears that there are three, perhaps four, different approaches forming in the case law — application of the Campbell River test (primarily in BC), application of Campbell River but in protest (like in Rawleigh),  a modified Campbell River test (a la Power Stream) and the traditional approach (as utilized in the McDonald case, above).  For now, it is safe to say that it is still unsettled law as to what test should be applied to determine whether an employee has made out a case of prima facie discrimination;
2. What is clear is that in certain circumstances, employees may be entitled to have important family obligations accommodated by their employers to the point of undue hardship.  These family obligations may extend beyond parent-child relationships as, generally speaking, a broad interpretation of the concept of “family status” itself has been applied across Canada.  So, for example, elder care issues arising from child-parent relationships may also be engaged.  That having been said, it is unlikely that all family-related obligations will be sufficient to equate to “family status”.  If a person’s situation is commonplace or based on preference, as opposed to it being mandatory or essential, the less a likelihood that a duty to accommodate on the part of the employer will be triggered;
3. It would appear that the duty to accommodate can be triggered not only as a result of a change made in workplace terms and conditions by an employer but also as a result of a change in an employee’s circumstances that then creates a conflict for the employee in meeting a work-related obligation (see the Power Stream decision noted above);
4. It is advisable that employers do not reject an employee’s request for accommodation of family status out-of-hand.  Serious consideration should be given to all requests by conducting an examination of the underlying facts and circumstances.  This would include determining from the employee what steps they have taken to resolve their work-family conflict themselves.  An assessment as to whether a denial of the request could constitute discrimination should be made and then it should be determined if the request can be accommodated.  This may require flexibility in workplace rules, policies or practices.
5. When considering making changes to terms or conditions of employment, employers should be aware that the changes may impact unique or mandatory family obligations of employees.  If at all possible, accommodation should be built into the changes to allow for flexibility in particular circumstances.

Stay tuned for my next post where I’ll be discussing a recent decision from the Alberta Arbitration Board which tries to come to grips with the great prima facie case debate I’ve outlined above.

By the way, you’re receiving this post from my freshly re-designed blog (yes, I’ve redesiged it again, if you’re keeping track!).  This time, I think I’ve got it right and I thank Skunkworks Creative Group for their hard work.  Please have a gander and let me know your thoughts!

Image of parent and child, above, by vivekchugh.

Yes, notes are important for a whole host of reasons, both personal and professional, but from my perspective they are absolutely critical if you, as a manager/supervisor/employer become aware of a potential human rights issue in your workplace.  By writing down what an employee has told you they have concerns about and what you did in response along with relevant dates and times and places, notes become key defense tools should questions ever be raised down the road about whether management appropriately handled a human rights issue, regardless of what it relates to.  

Created pre-complaint, notes are often considered to be one of the most reliable pieces of evidence to be considered during a formal process.  Certainly, when I am brought in to investigate a complaint I ask everyone and their dog if they made notes and I ask to see them right away.  Often, the notes can short-circuit the investigation process, making it more efficient than it would have been without them.  For example, let’s say  a complainant employee is contending that they told their manager they were being subjected to racially-based harassment and the manager did nothing in response.  Let’s also say that when I interview that manager, the manager recalls a conversation with the employee and also recalls going to the accused employee to tell them to stop their inappropriate conduct but she has not a single note of any of this.  Now, I have a credibility issue I have to resolve.  Who do I believe, the complainant employee or the manager?  I then have to embark on asking a whole bunch of questions of potentially a whole bunch of people to learn about the complainant employee and the manager so that I can then step back at the end of the investigation and make a call as to whom, of the two, is the most believable.  If, instead, that manager had notes, the situation is much different.  I can then focus on the notes and go back to the complainant employee and ask them specific questions flowing from those notes.  The manager’s credibility is enhanced by those notes.  That is not to say that the credibility question is a slam-dunk in favor of the manager but it is certainly miles ahead from where it would have been without the notes.

When it comes to defending the actions that you, as a business took, regarding a human rights issue raised in your workplace, you never want to be left in a position where you have to reconstruct events or have to rely on memories that, for most people, are notoriously unreliable.   The jigsaw puzzle type of analysis that has to be done when no notes exist leave an organization very vulnerable from a liability management perspective.

So, my advice is no matter how seemingly insignificant an employee comment or concern made to you about a potential human rights issue might appear at the time, write it down.  Remember that age-old, but oh so still relevant saying — an ounce of prevention is worth a pound of cure.

Many of you will have heard about the story that hit the news last week of a Manitoba man who was barred from patronizing a restaurant in Seven Sisters, Manitoba because his wife had been diagnosed with the H1N1 flu.  The story broke on Richard Cloutier's show on CJOB radio and I was fortunate enough to have been interviewed by him on-air about the human rights implications of the restaurant's decision to deny service.  The man has, apparently, now filed a human rights complaint against the restaurant with the Manitoba Human Rights Commission.  Time will tell how this case ultimately resolves itself.

While this particular situation involved the denial of services by a service provider, the comments I made on the radio show are equally applicable to employers and the workplace.  I thought it might be useful here to let you know what I said and expand upon my comments a bit further:

What is H1N1?

Health Canadaadvises that H1N1 is a strain of the influenza virus that usually affects pigs (and so sometimes this flu is also called the "swine flu").  This virus can, however, make people sick as well.   It is a respiratory illness that causes symptoms similar to the regular human seasonal flu.

How do I deal with H1N1?

1.    Operate based on Fact versus Fear

When dealing with or otherwise deciding how to address H1N1, businesses of all stripes need to operate on the basis of fact versus knee-jerk fear.  This is often easier said than done, especially when dealing with health and safety-related issues, but it is critical.  The minute you take action based on fear versus fact, that triggers a risk of running afoul of the many pieces of legislation business owners need to abide by but, in particular, human rights law. 

In terms of H1N1, it is important for business owners to understand what it is, how it is transmitted and how to protect against an outbreak.  Accessing information on the Public Health Agency of Canada's website on the H1N1 virus or similar information placed on provincial government websites (such as the Province of Manitoba's fact sheets) are key steps.

2.    Assume that H1N1 constitutes a disability under human rights legislation

Human rights legislation across Canada prohibits discrimination on the basis of disability or perceived disability.  While historically the flu hasn't been considered a disability by human rights commissions, that related to the regular human flu which is very common and usually of short-term in duration.  H1N1 has been classified as a pandemic virus by the World Health Organization which may well result in human rights commissions considering it in a different light.  Such an approach would be consistent with the Ontario Human Rights Commission's response to the SARS outbreak back in 2003. 

It is important to remember as well that human rights commissions take a broad approach to what constitutes a disability.  A person can, as a result, be considered disabled on the basis of how they are treated even if they do not have an actual disease or illness.  Consider, for example, the man who was barred from the restaurant.  He did not have H1N1, his wife did.  Yet, the restaurant seems to have treated him as though he had the disease.  The H1N1 label had an effect on him anyway.  A human rights commission may well conclude that this person was perceived as having a disability and discriminated against as a result of that perception.

In my view it would be wise for employers to assume that H1N1 would be considered a disability by a human rights body and operate on the basis. 

3.    Uphold your human rights-related responsibilities to all employees impacted by H1N1

The human rights-related responsibilities of employers extend not just to employees who are or may be infected by the virus but also to employees who are not infected.  

Employers must ensure that their workplaces are free of discrimination and harassment.  This means that they need to:

a.    make sure they have a clearly thought out plan to respond to H1N1 in the workplace, one that does not discriminate against employees who have H1N1 or may have been exposed to H1N1.  In particular, you want to be able to justify any actions you take in relation to employees who have H1N1 or may have been exposed to H1N1 on the basis of fact-driven health and safety precautions.  Here, you would want to follow the lead of public health officials and medical professionals;

b.    make sure that you take appropriate steps to accommodate employees who are disabled by H1N1.  What type of accommodation will be reasonable will depend on the circumstances.  It can, however, include things like permitting the employee to take time away from work, allowing the employee to work from home, or providing the employee with alternate work;

c.    make sure to refrain from harassing employees who may have H1N1 or are suspected of having H1N1 and prevent your employees from doing the same.  People have a natural fear of the unknown and since H1N1 is still a very new disease you may find your non-infected employees acting out of fear when they find out or suspect a work colleague has come down with H1N1 or has been exposed to someone with the illness.  This can result in harsh treatment of their colleagues.  Take any complaints of this type of harassment seriously and take appropriate steps to put a stop to any inappropriate behavior. 

Conclusion

While the barring of the man from the restaurant is the first incident of this kind that I have heard about relating to H1N1, I'm hopeful that it will be the last.  I'm also hopeful that the above information helps you avoid coming into conflict with the human rights legislation in your jurisdiction in relation to how you operate your business if H1N1 knocks on your door.

Photo credit:

For those of you who have been asking about other courses I might be teaching at the Commission I'm happy to announce that I've spent my summer putting together a brand new course that I think will be a great addition to the Commission's current line-up.  Called "Workplace Human Rights Complaints: myths, fears & realities", I'm going to be covering a whole range of common topics that I come across in the work I do on a daily basis and which I find that human resource specialists, managers and employers struggle regularly with.  My goal is to dispel the myths and fears associated with workplace human rights complaints, and let you in on the real truths.  Here's what we'll be discussing:

• legal liabilities of employers for human rights-related misconduct in the workplace
• ways in which a human rights complaint can come to your attention in the workplace (some obvious, some not so!)
• what to do if you become aware of what you think is a human rights complaint (learn what you need to do to help prevent legal liability)
• how to decide whether a human rights complaint needs to be investigated (the questions you need to ask yourself before jumping head-first into or avoiding an investigation)
• essential elements of a good investigation
• liability issues relating to the poor handling of investigations
• the top 8 fatal mistakes employers make when faced with a workplace human rights complaint
• what to expect when the Human Rights Commission gets involved (what really happens)
• my top 5 tips for dealing with the Commission.

The course has been structured to be an open dialogue with quick quizzes and test-your-knowledge scenarios to ensure you leave with a solid understanding of the material.  I'll also save time for those "I've always wanted to ask this about the Commission but didn't know who to ask" questions that may have been plaguing you for years!  I hope you join me as I embark on this new course.  I'm only teaching it three times this session so if you're interested, please contact the Commission and sign up soon.

I know there are those of you who live outside of Manitoba or you otherwise can't make it to my courses but have been asking for access to my materials anyway.  Please note that I am currently working at getting my content together to start making my courses available online.  I'm still in the early stages of development but will keep you updated so you know when this becomes reality. 

Accessibility standard may affect how training, safety info delivered in Ont

by Mark Sabourin

Across the country, advocates for persons with disabilities are watching with interest as Ontario develops standards under the Accessibility for Ontarians with Disabilities Act,2005 (AODA). A standard for customer service came into force on January 1, 2008, and four others are under development: transportation; built environment; information and communications; and employment.

Public sector organizations must comply with the customer service standard by January 1, 2010, while private sector and non-profit organizations must comply with the standard by January 1, 2012.

The four remaining standards are expected to be finalized in the coming months.

Ontario’s employers and safety training agencies haven’t been paying much attention to the process so far, and very likely they should have. The information and communications standard, for one, will require that information about “workplace health and safety procedures and systems” be made available to employees with disabilities in “accessible alternate [sic] formats and communication supports.” The employment standard specifically references WHMIS (workplace hazardous materials information system) material, among others, which must be made compliant with the information and communications standard.

Even staunch advocates of the standards are quick to explain that this does not mean that all MSDSs (material safety data sheets) will have to be rendered in Braille. But the information and communications standard, if adopted (and it has passed all phases of public review), may significantly affect how training is delivered and how safety information is communicated.

In addition to disabilities that are perhaps more familiar to employers, such as mobility, hearing or visual impairments, the AODA includes learning disability. That covers between 4% and 6% of Ontario’s population, says Diane Wagner, coordinator, Public Policy and Client Services with the Learning Disabilities Association of Ontario (LDAO). Wagner served on the information and communications standard committee, and the LDAO was also represented on the employment standard committee.

Really, it shouldn’t come as a surprise. The current Ontario Human Rights Code prohibits discrimination in employment “because of handicap,” which includes learning disability.  The Ontario Human Rights Commission has a long list of policies, supported by case law, around the doctrine of reasonable accommodation. There is no easy definition, but if a worker’s disability can be accommodated without undue hardship or compromise to safety, then it must be.

Donna Seale, Manitoba human rights lawyer and educator, says it has long been the case that workplace materials should be made available in formats suitable for the disabled, including the learning-disabled. Most employers get the concept of reasonable accommodation, says Seale. Translating that into action is sometimes problematic, and that’s where standards like this one step in. They tell employers and training agencies what they should do.

Acceptable alternative communication formats for persons with disabilities are listed in an appendix to the information and communications standard. Formats include Braille, e-text, audio, video, captioned video, sign language and many others. These are the provisions that have provoked fear or ridicule from critics, but supporters say these concerns are unfounded.

“A big misconception is that everything has to be ready all at once, up front,” says Diane Wagner, “that you have to convert everything into Braille, everything into every format.”  That’s not the case. Employers will have to determine first if they need to convert information, what information needs to be converted, and what format is most appropriate.

Two workers of the same age and background, with identical disabilities, will not have the same accommodation needs, says Bob Santos, CEO of Link Up Employment Services for Persons with Disabilities, headquartered in Toronto. Quite likely, the degree of accommodation required will be far less than the employer initially suspected. 

Safety is a legitimate exception to reasonable accommodation. The communications standard won’t require employers to offer forklift training to blind workers. But employers will not be permitted to deny an opportunity to an employee solely on the argument that a learning disability prevents effective communication of safety information, says Diane Wagner. If an employer plans to make that argument, the employer had better be prepared to prove that considerable efforts were made to accommodate the worker, and that those efforts failed.

“You can’t say, ‘he can’t read the health and safety manual so he can’t get the job,’” says Wagner.

What the standard should do is compel employers and training delivery agencies to review how they deliver safety training in order to make it more broadly accessible, says Bob Santos. His organization delivers a program called SafeAbility, which offers safety training geared to the needs of persons with disabilities. It also offers a “train the trainer” program for employers and agencies that will be delivering services to workers with disabilities.

It is not a burdensome process, Santos assures. It requires a shift in thinking by the persons delivering the training or communicating the information, and more careful scrutiny of the media that carry the information. “It is simple enough and straightforward enough to be implemented in any place of employment, any community, anywhere in the world.” It is more expensive, he says, but not much more, and certainly not enough to bar its introduction where needed.

Cost alone is seldom a sufficient argument against reasonable accommodation, says Donna Seale. To prevail, the cost would have to threaten the viability of the business, she says.

It’s quite possible that there are more learning-disabled people in the workforce than employers suspect. Margaret Eaton, president of the literacy organization ABC Canada, says learning disability often manifests as poor literacy, and those workers have naturally gravitated toward the manufacturing and resource sectors, where literacy skills are not in as high demand. The shame felt by poorly-literate workers often leads them to conceal their status, she says.

But the decline in the manufacturing sector, coupled with greater recognition of learning disability in the education systems, means that more and more learning-disabled workers will be seeking employment in positions they can safely perform, provided training and safety information is delivered to them in a format other than a hard-copy manual.

“[Learning-disabled] students that are coming up through the school system are used to using assistive technologies,” says Diane Wagner, referring to some of the accommodations referenced in the information and communications standard. Margaret Eaton says the previous generation of workers would have been reluctant to declare a learning disability and ask for accommodation. For the generation entering the workforce, it will be the norm.

Often, says Donna Seale, employers look at accommodation as “something they have to endure,” when in fact the changes end up benefiting everyone in the workplace, not just those to whom they were initially directed. Ours is an aging workforce, she says.  Accommodations made for visually impaired workers or learning-disabled workers may also prove to be great benefits to older workers or others, she says.

Bob Santos likes to cite the example of the automated door-opening device found in contemporary buildings. It’s activated by a push-button identified by a universal logo of a person in a wheelchair, but it is far more often used by able-bodied people, he says. The same should happen with training, as sensitivity to the needs of persons with a wide range of disabilities may improve the standard of training delivery for everyone.

The fact is, if you do not have a process in place to reasonably assess accommodation requests, you will not successfully defend against a human rights complaint alleging a failure of the duty to accommodate.  Same goes if you have a process in place and then choose, for whatever reason, not to follow it.  Ditto if you choose to simply follow on the coat tails of a third party payer to decide how you should go about accommodating your employee.  Unfortunately, there are still a lot of employers out there who are not getting these messages.  Case in point, Jodoin v. City of Calgary, a November 2008 decision of the Human Rights Panel of Alberta.

The facts in brief

Mr. Jodoin began working for the City of Calgary in 1999.  In September 2002, while he was working in the waste and recycling department as a driver/labourer, he injured his lower back.  He subsequently made a successful claim for workers’ compensation benefits.  From September 2002 to February 2003, Mr. Jodoin underwent a number of medical tests and was determined by his physician to be unfit for work during this time.  In early February 2003, he underwent spinal decompression surgery.  It wasn’t until June 2003 that Mr. Jodoin’s doctor recommended a gradual return-to-work.  His return was not successful, though, as the job he was placed in was too strenuous.  He went off work again to undergo further testing and obtain an accurate assessment of the impact of his disability.

In March 2004, it was determined that Mr. Jodoin’s condition was such that he would only be able to do sedentary work in the future.  One of Mr. Jodoin’s specialists sent the City a list of Mr. Jodoin’s work restrictions and asked for the City to determine whether it could accommodate him in a permanently modified or other suitable alternate position.

The City began using the work restrictions identified by Mr. Jodoin’s doctor in order to attempt to find long term accommodation for him.  In the meantime, the Worker’s Compensation Board, which was also involved, determined that it was not satisfied that Mr. Jodoin could only do sedentary work and, instead, came to the conclusion that he ought to be able to perform work that simply did not require heavy lifting.  As a result of the WCB re-assessment of Mr. Jodoin’s work abilities, the City changed his restrictions from sedentary to medium-type work.  The City sent out some e-mails to supervisors in Mr. Jodoin’s department and to human resources and return-to-work coordinators requesting accommodation for him.  No potential jobs were uncovered.

WCB subsequently determined that Mr. Jodoin was not participating sufficiently in their job search program and, as a result, terminated his re-employment assistance benefits.  The City then sent him a letter indicating that his benefits had been terminated by WCB for failing to cooperate in the rehabilitative process.   The City further advised Mr. Jodoin that they were prepared to grant him an unpaid leave of absence for 30 days to rectify the situation with WCB.  Mr. Jodoin was instructed to complete a leave of absence form and return it within 7 days.  The City’s letter went on to say that if Mr. Jodoin failed to return the form or be reinstated by WCB his employment would be terminated.

Although Mr. Jodoin asserted that he cooperated to the best of his abilities with WCB and he wrote a letter to the City setting this out, he received no response.  Mr. Jodoin did not sign the leave of absence form, believing that he was being “pushed out the door because he was sick.”  The City subsequently wrote to Mr. Jodoin in July of 2004 advising him that they considered him to have “voluntarily resigned.”

Decision

The Alberta Human Rights Panel determined that Mr. Jodoin did have a physical disability as defined by the Alberta human rights legislation and that the City was well aware of his disability.

The City accepted that it had a duty to accommodate Mr. Jodoin but argued that it had provided that accommodation by making available to him four “safety nets” (Workers’ Compensation Benefits, Long Term Disability, Supplementation of Compensation under the collective agreement, and the possibility of a Leave of Absence).  The Panel rejected this argument, pointing out that the availability of these types of benefits to employees did not necessarily bear on whether the employer had met its duty to accommodate.

Contrary to the employer’s contention, the Panel concluded that the City failed to make reasonable efforts to accommodate their employee for the following reasons:

1. Without consulting with Mr. Jodoin’s doctors, the City accepted the WCB’s assessment of Mr. Jodoin’s work abilities.  The WCB assessment that Mr. Jodoin could perform work at a ‘medium level’ was diametrically opposed to the medical assessment that he could only perform sedentary work.  The Panel found that by accepting the WCB assessment and modifying Mr. Jodoin’s work restrictions to reflect this acceptance, the City would have set him up for failure in any position that they might have found for him;
2. The City’s search for permanent modified work for Mr. Jodoin was “limited and ineffective” because:

• • the City sent e-mails on two occasions requesting possible accommodations to Mr. Jodoin’s     current     department (Waste & Recycling), even though the City’s representative indicated she seriously doubted his ability to return to work in that department;
  • with one exception, no record was kept of the positions that the City had actually considered and ultimately rejected as possible accommodations for Mr. Jodoin;
  • the City’s policy and procedural guidelines indicated that union involvement was required anytime an accommodation might engage the collective agreement.  Although the collective agreement was arguably engaged here, the union had never been approached by the employer.  While the City argued that Mr. Jodoin indicated he had no use for the union, the Panel pointed out that this had little relevance to the employer’s responsibility to involve the union pursuant to its own process;
  • the City’s procedural guidelines mandated an open communication process.  However, the City was unable to show that it maintained regular contact or any semblance of open communication with Mr. Jodoin;
  • the City’s guidelines provided two checklists to assist in the accommodation process but the City’s representative stated she followed the process “in her head” rather than either of the checklists as it would be too time consuming to complete the checklists on all of her files;
  • all possible accommodations had not been pursued.  The City could not show that their search for modified work for Mr. Jodoin had been extended to City departments outside of Mr. Jodoin’s union or corporate wide.
  • Even though Mr. Jodoin was medically capable of working in a sedentary position, he was never given the option by the City of returning to work when WCB suspended his benefits.  Instead, he was offered a Leave of Absence to enable him to appeal that decision.  The Panel also pointed out that this “option” was given to Mr. Jodoin with no explanation and without advising him that they were not searching for a sedentary position for him;
  • At no time did the City actually inform Mr. Jodoin that they could not find appropriate accommodation for his disability.  Instead, they threatened to terminate him if his WCB benefits were not reinstated of if he did not sign the Leave of Absence form.  The Panel stressed that because this was such a complicated employment situation, the City had a responsibility to meet with Mr. Jodoin and explain his options and any consequences associated with not signing the form, something it failed to do;

  Finally, the Panel concluded that the CIty provided no evidence that it would have suffered undue hardship by continuing to employ Mr. Jodoin in a sedentary position.

  Remedy

  Finding that the City of Calgary failed to meet its duty to accommodate Mr. Jodoin, the Panel ordered that the City pay to him $5,000.00 in general damages and lost wages in the amount of $17,307.69 (less statutory deductions) plus interest.

  What to take from this case:

  • I’ll end this post the same way I started it — having a process and following it is absolutely essential if you, as an employer, hope to avoid liability in relation to the duty to accommodate;
  • Follow that process in each and every instance you are faced with needing to accommodate the human rights-protected needs of your employees; and
  • Complete your process.  Do not stop looking for accommodation if WCB or another insurer or third party payer decides to terminate any benefits your employee might have been receiving relating to the accommodation need.  An employer’s duty to accommodate operates independently and you’ll be the one on the hook, not the insurer, if you choose to short-circuit that policy without appropriate justification.
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