Published on September 10, 2013 by Donna Seale
Employers often seek me out for advice on issues of workplace accommodations for their employees. Many of them, I am pleased to say appear to have a good understanding of what the duty to accommodate requires of them and they propose an accommodation plan for my review that appears comprehensive — leaving virtually no stone unturned in an effort to demonstrate a sincere effort to accommodate their employee to the point of undue hardship.
There are other employers, however, who will call me to vent about having to provide an accommodation to an employee who has made a case for a human rights-based need for one. They talk about just “going through the motions” to find an accommodation for the employee. They question how far they have to go to meet their legal duties, most often wondering aloud what the bare minimum is they can “get away with”. They show a desire to pick and choose what positions they will consider for accommodation purposes, often casting their gaze upon the lowest paid alternatives. Some will even go so far to suggest there is “no way” they can accommodate the employee but, upon questioning, have little, if any, proof of why that is.
And when I get calls like this, aside from educating them about their legal obligations the comment I often make in response to these employers is: what if it was you?
What if you were the one needing the accommodation? How would you like your employer to respond? What would you want your employer to do to help you navigate the barrier that you are experiencing in participating fully in your workplace?
While I won’t say that I’m 100% successful in getting through to these employers when I ask them to consider my what-if-the-shoe-was-on-the-other-foot line of questions, my batting average is pretty high at convincing most to reconsider their positions and it always causes them to pause for a moment and reflect [usually signified by dead silence on the other end of the phone for a few seconds...].
If you’ve ever been to one of my live training courses you will know that I like asking questions that make you stop and think and, perhaps, look at a set of circumstances in a way you may have never looked at them before. I have always believed that there is power in those moments. It is powerful to see the look on people’s faces when they have that “a-ha moment” — when empathy appears to take hold where it may never have existed before because that person simply did not happen to look at the world through the particular lenses of experience we are discussing. Not necessarily through any fault of their own, of course, but merely because that wasn’t their perspective due to the specific path their lives had taken. When you can view circumstances from the perspective of the person on the other side, often great learning is to be had because the situation is then being humanized as opposed to just “legal-ized” (being lectured about what the law requires which, for those of you on the receiving end I know can sometimes feel like you’re stuck listening to Charlie Brown’s teacher talking).
While I’m used to being the one encouraging these “a-ha moments”, the past six months, in particular, have lead me to have a number of my own. As a small business owner, I have to keep my business up and running at all times in order to, well, stay in business. But, I’m also an employer. I have two employees. My assistant and me. And in my particular business, the business and I are one and the same. Sometimes that’s a good thing – when I need to arrange my schedule in a particular way, as my own boss I can usually get a positive answer to my request (although my boss is a tough cookie!). Sometimes, though, “being the business” is not a good thing. Particularly when you are faced with significant family care issues (relating to my sister, who has disabilities, and being her only family), juggling child care and then coming face-to-face with my own serious health issues. And, so I have been the one to have to request accommodation from my own business these past months. The business owner/employer in me has been none too happy. I have clients to help out and people to teach and bills/employees to pay. The business owner/employer in me wants nothing to do with modifications in work duties and then reduced work schedules and (gasp!) time off to recuperate. But the employee in me, try as she might, has had no choice but to make these requests. She has tried all she can to self-accommodate — to make personal changes and seek out the help of others (where others could help out) in order to enable her to meet her job obligations and still she could not. Fortunately, my employer was able to craft a solution that met the accommodation needs of me the employee all the while still keeping the business going and ensuring clients were taken care of.
As a self-admitted do-everything-a-holic who has never taken a full sick day off work in her life it has been a very tough path for me to be on these past six months, having to concede I can no longer do it all, having to ask for help, having to recognize the stress that I was enduring from my particular life circumstances and having to acknowledge my body’s refusal to allow me to work when I kept ignoring the distress signals it was sending me. During all of this I have often wondered how I would have fared had I worked for someone other than myself. Would my employer have been open to listening to and understanding my unique circumstances? What proof would I have needed to provide my employer to convince them of my need for accommodation especially as relates to the assistance I have had no choice but to provide my sister even in the face of having taken steps to enlist the services of third parties? What accommodations would my employer have been prepared to find for me? Would they have just “gone through the motions”, done the least possible, or would they have made sincere efforts to determine what was available or could be made available not only because that is what the law requires but because they recognized the barriers I was facing due to my particular characteristics through no fault of my own?
Thankfully, I’m slowly regaining my health and returning to work and being productive for my employer again. Thankfully my employer had asked herself: what if it was you? and found a way to accommodate her employee.
What kind of employer are you?
Published on October 22, 2012 by Donna Seale
A recent decision of the Ontario Arbitration Board provides some good reminders for unionized workplaces as to the responsibilities of employers and unions engaged in the process of finding accommodation for employees with disabilities.
In Waterloo Catholic District School Board v. CUPE, Local 2512, the union, which represents office and clerical employees at the workplace in question, grieved the employer’s failure to post a job for the position of receptionist, after the job became vacant due to a retirement. The employer had previously advised CUPE that it would not be posting the job because it needed to accommodate an employee with disabilities from another bargaining unit represented by another union (CAW). While the employer had attempted to accommodate the employee with modified duties in her own bargaining unit and had examined other jobs available to her, the employer determined that there was no suitable full-time position that could be modified to meet the employee’s needs. The receptionist job that became available through retirement was determined to be “an excellent fit.”
After reviewing the Ontario Human Rights Act and guidelines published by the Ontario Human Rights Commission on the duty to accommodate as well as principles established in the case law, the arbitrator hearing the case concluded the following:
“The Employer can step outside the bargaining unit and encroach on another unit in order to accommodate an employee only when it has established that there is no reasonable way, including the restructuring of jobs, to accommodate the employee within the unit. If it establishes this factual context the Union can only resist the accommodation if it can establish that it would cause undue hardship.”
In light of the evidence presented, the arbitrator concluded that the employer had proven that moving the employee with disabilities into the receptionist job was the only reasonable accommodation in the circumstances. On the flip side, the arbitrator determined that the union had failed to establish undue hardship. Although the receptionist job was a junior position, CUPE appeared to argue that the job was attractive to employees in the office and clerical bargaining unit because it was not demanding, permitted flexible vacations and continued into the summer months. By failing to post the position, the employer was denying CUPE’s members the opportunity to bid on a coveted position. The arbitrator concluded that just because the position might be of interest to CUPE members to bid on that was insufficient to amount to a hardship significant enough to CUPE’s members union to disallow the CAW employee to be placed in the position instead for accommodation purposes. It was also noted that the move would not impact seniority rights in anything but a minimal way. The union’s grievance was dismissed as a result.
This case is a helpful reminder that all players in the accommodation process must fulfill their practical and legal responsibilities, unions included. In particular, the law requires unions to cooperate with reasonable accommodation efforts by employers and to refrain from unreasonably blocking a viable accommodation option. They must be prepared to waive aspects of a collective agreement as part of their overall duty to accommodate employees in the workplace, whether from their specific bargaining unit or not. Where the union believes that waiving the necessary parts of a collective agreement to permit the employer’s proposed accommodation to occur would amount to an undue hardship to its members, the union must be prepared to demonstrate, with proof, that undue hardship would actually occur. Minimal hardship or mere possibilities will not be enough to pass this test.