Canadian HR Reporter

CANADIAN HR REPORTER March 6, 2017 NEWS 17 For 25 years, The Annotated Canada Labour Code has been the authoritative resource labour relations professionals rely on to help them interpret and apply the Canada Labour Code. New in this edition • Commentary on the CIRB's interpretation and application of the Employees' Voting Rights Act • Case law and commentary on the Board's review of how union membership fees are paid in determining the strength of certifi cation applications, commentary on the duty of fair representation owed by employer representatives to their member companies, the rights of litigants to be represented by legal counsel at arbitration proceedings, and further explanation of how the "maintenance of activities provisions" of the Code will be applied • Cases offering insight into when "violence in the workplace" complaints must be investigated and the role of employee representatives in "refusal to work" complaints • Digests covering the noted 2016 Supreme Court of Canada judgment in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, 2016 CSC 29, which dealt with what constitutes an "unjust dismissal," as well as other cases dealing with issues of whether paternity leave can be sought, what constitutes the date of dismissal for s. 240 purposes, as well as consideration of the "arguably relevant" test for the production of documents New Edition The 2017 Annotated Canada Labour Code, 25th Anniversary Edition Ronald M. Snyder Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # 987131-65203 $167 Softcover approx. 1900 pages December 2016 978-0-7798-7131-5 Shipping and handling are extra. 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Background e original 2001 "Policy on able- ism and discrimination based on disability" was focused on employers and unions while the updated version published by the OHRC last year added service and housing providers to those bear- ing a legal duty to accommodate, said Stefanie Di Francesco, em- ployment lawyer at McMillan in Toronto. "I certainly think it's a helpful update," she said. "It's an update of where the law is now, taking into consideration the case law and what the commission and tribunal have seen in the past 15 years." e clarified policy released in February sets out detailed guid- ance regarding the type and scope of medical information that can be provided to support an accom- modation request. This information should include: • that the person has a disability • the limitations or needs associ- ated with the disability • whether the person can perform the essential duties or require- ments of the job, with or without accommodation • the type of accommodations that may be needed to allow the person to fulfill the essen- tial duties or requirements of the job • regular updates about when the person expects to come back to work, if she is on leave. Currently, requests for accom- modation are often accompanied by insufficient information from employees or excessive data re- quests by employers, said Stuart Rudner, employment lawyer at Toronto's Rudner MacDonald. "ere is a lot of confusion in this area," he said. "ere's always a struggle to balance privacy rights and the right to accommodate." Legal advice provided to em- ployers has always been focused on the limitations of the employee to carry out her job functions, but not diagnosis or other medical in- formation, said Rudner. "is clarification is quite help- ful because this is almost a con- stant battle," he said. "It makes it very clear that employers are en- titled to whatever information is necessary to allow them to assess the need for accommodation, but no more." "At the same time, it confirms to employees that they need to be a part of the process. e process of accommodation is supposed to be a two-way dialogue… so hopefully this will remind both sides of what their obligations are." Striking a balance Confusion leading to overbroad requests was undermining the dignity and privacy of people with disabilities, said Robertson. "Employers, much like univer- sities and colleges, were under the impression or had never been questioned on the practice that many of them have participated in asking for what we think is in- trusive medical documentation, including things like a person's treatment plan or their prog- nosis," she said. "Mainly, the hot spot is the request for a person's diagnosis." Diagnoses are off limits because "the focus should always be on a person's functional limitations," said Robertson. "That requires an individual assessment. A diagnosis can la- bel somebody but, as we know, a person can share a diagnosis with many other people and yet their disability-related needs can be completely different." "e diagnosis, in and of itself, seems to be something of a red herring and a distraction from what the accommodation pro- cess ought to be, and that is an in- dividual assessment of what that person's disability-related needs and functional limitations in their job are." Essentially, what the policy strives for is limiting the accom- modator's focus to the functional limitations associated with the disability, rather than the diagno- sis, she said. Stigmas still exist, especial- ly around mental health, said Robertson. Resultingly, if an employee knows his employer will require diagnosis documentation, he could be deterred from seeking the accommodations he is legally entitled to, she said. at's certainly the aim of the policy — to provide clarifica- tion and guidance so accom- modation can be individual to the particular employee in par- ticular circumstances, said Di Francesco. "It's basically providing em- ployers and employees with a guideline of what they could ex- pect, generally, to ask for and to receive," she said. "But it does leave open the door to more broad requests for infor- mation from employees when a situation is particularly compli- cated or diagnostic information is relevant." Meanwhile, employees desir- ing accommodation cannot sim- ply withhold all data while citing privacy, said Rudner. "You can't have it both ways," he said. "If you want to be accom- modated, you need to provide sufficient information so that the employer can, first of all, assess whether there is a need for ac- commodation and then, second of all, if there is one, assess what the options are." Review policies e OHRC's updated policy could have national implications, as it is now the most comprehensive of its kind in the country and will be considered by human rights tri- bunals and other decision-makers adjudicating over disability cases, said Robertson. "In terms of what the law re- quires across the country, it is evolving," she said. "We are defi- nitely making a statement in the effort to try to resolve conflict that we know is happening on the ground when people go to make these accommodation requests. It's considered a progressive state- ment on something that we know is a confusing issue for people across the country." at means all Canadian HR practitioners should proactively review their company policies, as tribunals typically attempt to maintain consistency across the country, said Di Francesco. "It's a great opportunity for em- ployers to look back at what their policies are and ensure that they aren't asking for more (than what) is necessary," she said. "It is a focus still on individual accommodation but I think the tribunal is trying to clarify that if it's straightforward what the per- son needs — and you don't need to know their diagnosis and their treatment and their outlook — then that's not appropriate infor- mation to ask for." Companies should work with legal counsel to establish accom- modation policies that comply with OHRC regulations, said Di Francesco. Internal policies and proce- dures should outline guidelines of what information is appropri- ate to ask for, and when. "I think employers will wel- come the additional guidance," she said. "Employers and employees will still have to, on an individual ba- sis, grapple with what is appro- priate documentation in each individual case." "So the guidance will be help- ful, but in no way will it be an all-encompassing answer to what an employer will have to do on a case-by-case basis." A review of this nature could potentially reduce future claims regarding breaches of privacy rights or stalemates leading to claims over lost wages, said Rudner. Role of doctors As part of the process, the OHRC circulated the policy to the Col- lege of Physicians and Surgeons in Ontario and the Ontario Medical Association in hopes of achieving systemic change, said Robertson. "ey are key players in en- suring that this process works smoothly," she said. "e human rights system is a complaints-driven system so it's not as though we can mandate that they do this, but it is defi- nitely a best practice and it's now become much more commonly understood that this is the expec- tation and that it causes all kinds of problems when they aren't ful- filling the expectations set out in the guidelines." To date, HR professionals have been frustrated in receiving "very ambiguous notes that were lack- ing in detail" needed to tailor ap- propriate accommodation, subse- quently delaying the process, said Robertson. Vague doctors' notes often state an employee will be away for a cer- tain amount of time for "medical reasons," said Rudner. "I hate to say it, but it does seem like if you want a doctor to write you a note, you can pretty easily find one to do so," he said. "We always tell our employer clients that 'You're entitled to more information than that. You're not entitled to the diag- nosis, but you're entitled to know what the limitations are on their ability to their job.'" Doctors are strapped for time as it is, but providing a Functional Abilities Form is an efficient way to request more information, said Rudner. "Essentially, it's a fairly detailed form where the doctor can check off boxes of what the individual is, and is not, able to do." But in order for the employer to contact the doctor, it needs authorization from the employee in question, he said. Typically, the request is sent to that employee indicating more information is required in terms of workplace limitations. "Employers and other people responsible for accommodation have the right to request clarifica- tion or more information if what they've initially been given doesn't allow them to be able to fulfill the obligation to accommodate," said Robertson. A doctor will certainly repre- sent their patient's best interest, said Di Francesco, "and usually a doctor is completing a Functional Abilities Form and will fill it out appropriately." Doctors 'key players' in ensuring smooth process MEDICAL < pg. 1 "ere is a lot of confusion in this area. ere's always a struggle to balance privacy rights and the right to accommodate."

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