E.F.A.P. and Disability Management
E.F.A.P. and Disability Management Committee
Committee Members
The duty to accommodate. What is it?
II. Duty to Accommodate
"Duty to accommodate refers to the obligation of an employer, service provider, or union to take appropriate steps to eliminate disadvantage to employees, prospective employees, or clients resulting from a rule, practice or physical barrier that has or may have an adverse impact on persons with disabilities."
Canadian Human Rights Commission
The duty to accommodate is the single most important factor to positively affect the participation of people with disabilities in the workplace. The meaning of the duty to accommodate up to the point of undue hardship continues to evolve through legal interpretations of tribunals and courts. The law requires that an employer will provide accommodations unless it can demonstrate that the provisions of those accommodations would cause an undue hardship. In the absence of being able to prove undue hardship, the employer or service provider would not be able to establish a defense against a claim of discrimination.
***
EP AND DUTY TO ACCOMMODAT
by Brian Kohler, National Rep - Health, Safety and Environment
The article on "Rehabilitation/Accomodation" is interesting and very timely. Many employers and local unions are right now trying to address this problem in their collective agreements and/or their absenteeism and illness policies. The rights of disabled and recovering employees to return to work raise important questions for unions, e.g. the impact such rights may have on existing union rights such as seniority.
The CEP does not have an explicit policy on duty to accommodate, although our policies on disabled persons and affirmative action do apply. The question of seniority is not addressed.
The best solution is to use a joint union-management committee to make the actual return to work decisions. Some collective agreements set up such a committee.
Some of our collective agreements state that vacant jobs will be offered to disabled workers preferentially even though other clauses in the collective agreement might indicate that the most senior worker would get the position.
Most agreements do not go so far as to suggest that a worker could actually "bump" a more senior person from an existing position even though that job might be suitable to the capabilities of the disabled worker. However, one or two of them actually do suggest this possibility. If so, the joint committee making that decision would have to handle the situation with extreme care and sensitivity; preferably with the agreement of, or at least compensation for, the "bumped" employee.
The question of adaptation of the workplace to the capabilities of challenged workers is also addressed in some of these clauses. In at least one case, the employer did make extensive modifications to a control room to make it wheelchair accessible, and re-located some of the instruments, in order to be able to place a disabled worker in a "board operator" position.
bR>
The problem of how to deal with the duty to accommodate is presently being discussed at the Canadian Labour Congress.
We welcome your suggestions, comments or general inquiries.
Drop a line to the author brian@cep.ca
Test
--Home--