Canadian Employment Law Today

with Brian Kenny Ask an Expert MacPherson LesLie and TyerMan Regina Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | March 18, 2015 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Answer: Employers need to be cautious in approaching the medical issues of their employees, specifically where the employee has already provided medical information to verify a disability and the required ac- commodation for it. For example, based on the case law, it would likely be inappropriate to inquire into the specific diagnosis as to why the employee cannot wear the required shoes (apart from establishing a disability requiring the same) as this ventures into seeking the employee's private medical in- formation without a reasonable basis for the request. However, it would not be unrea- sonable to inquire as to the specific details of the limitation as they impact the accommo- dation exercise, or whether there are addi- tional, related restrictions faced by the em- ployee that the employer should be aware of in fashioning an appropriate accommoda- tion. e distinction is that the latter relates to specific information required by the em- ployer to determine appropriate accommo- dation for the employee, while the former simply requests knowledge of the underly- ing cause (which, arguably, is not needed for the purposes of implementing necessary ac- commodations). As there are a wide variety of what might be termed women's "dress shoes," additional medical information could be requested to determine in what manner accommoda- tion may be implemented. e information requested might, for example, relate to the type of accommodation necessary or the anticipated duration of the accommodation period. e employer may request details as to the effect of the disability, the parameters of the disability, or the reasons behind the accommodation suggested. As the restric- tion against wearing "dress shoes" is some- what ambiguous, it would be reasonable to ask what specific types of shoes or shoe fea- tures represent a problem for the employee. e medical information requested should be directly and reasonably related to the em- ployment relationship and the accommo- dation process, and a reasonable amount of time should be given to the employee to obtain the requested information. is process may be accomplished by requesting an additional doctor's note or report as described above. However, an employer may also want to consider simply developing a solution with the employee's input, should enough information be avail- able to do so. A helpful approach would be to actively work with the employee to find an appropriate accommodation. e law recognizes that the accommodation pro- cess is one that requires co-operative par- ticipation by both employer and employee. An employer might consider discussing the limitation with the employee to determine the limits of the medical issue and distill a solution on that basis. For example, the employer could discuss with the employee what types of shoes would be acceptable: Is the issue that the employee cannot wear heels, in which case other dress shoes may be appropriate? Are orthotics required? What other type of shoes might be accept- able as a part of the uniform? Is this a perma- nent restriction? ere is a wide variety of what might be termed "dress shoes" and it may be possible to find an acceptable solution for all parties with some effort on both sides. It is the re- sponsibility of both the employer and the employee to work together to reach an ac- ceptable accommodation, if it is reasonably possible to do so. e employee has obliga- tions, including the obligation to commu- nicate the disability, provide information to support her need for accommodation, and co-operate in the development of an accom- modation plan. Threshold for C-45 charges Question: In order for a person to be charged and convicted under section 217.1 of the Canadian Criminal Code (C-45 law), is bodily harm required? For example, if equipment being used by employees is known to be in unsafe condition that could result in serious injury or death, can charges be laid before something happens if nothing is done to address the situation? Answer: Section 217.1 of the Criminal Code places a legal duty on everyone who undertakes or has authority to direct how others work or perform a task, to take rea- sonable steps to prevent bodily harm to the person performing the work or task, and to any other person. However it does not in and of itself establish a new criminal offence. Rather, it establishes a legal duty, which, if breached, may result in charges under another criminal code provision, for example criminal negligence (s. 219), caus- ing death by criminal negligence (s. 220), or criminal negligence causing bodily harm (s. 221). While the latter two sections clearly require actual harm to result, criminal neg- ligence does not specifically require actual harm for a conviction. Section 219 (Criminal negligence) reads as follows: " (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. (2) For the purposes of this section, "duty" means a duty imposed by law." Either acts or omissions can result in a conviction for criminal negligence, provid- ed the act or omission shows a wanton or reckless disregard for the lives or safety of other persons – (however, the offence need only result in potential harm to one other person). e elements of criminal negligence, in conjunction with s. 217.1, therefore do not require actual harm to have resulted, pro- vided the following can be established be- yond a reasonable doubt: • e accused undertakes or has the au- Medical exemption from uniform shoes Question: Our store requires dress shoes be worn as part of our uniform. An employee provided a doctor's note stating that due to medical reasons she couldn't wear dress shoes. Is this sufficient information or can we require more details as to why the employee can't wear the shoes required? FaiLure on page 6 » MacPherson LesLie and TyerMan LLP Regina WeBinars Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as attendance management, employment standards, the new Labour Market Impact Assessment, and key developments in employment law. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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