Newsletter

 Home / Newsletter

WENDY ELLEN INC.

November 2016 Newsletter
In This Issue
  • A Message from the Government of Canada
  • Thanks for Joining Us!
  • What is the Duty to Accommodate
  • Eleven Prohibited Grounds of Discrimination
  • Duty to Accommodate: A General Process for Managers
  • Quick Reference: To What Extent is Accommodation Required?
  • Quick Reference: Performance and the Duty to Accommodate
  • Quick Reference: Accommodating People With Disabilities
  • Coach’s Corner: Duty to Accommodate in the Workplace
November 2016
Volume 3, Number 11

A Message from the Government of Canada:
Reducing the two-week waiting period to one week


The Employment Insurance (EI) waiting period is a period of time that must be served before a claimant can begin to receive EI benefits. It has been set at two weeks since 1971. Shortening the waiting period is expected to ease the financial strain for EI claimants at the front-end of a claim and will put an additional $650 million in the pockets of Canadians annually beginning next year.

The reduction of the waiting period applies to regular, fishing and special benefits. It is worth noting that the number of weeks of EI benefit entitlement will not change. Similarly, there are no plans to change the timeframes in which employers are required to issue records of employment.

Budget Implementation Act, 2016, No. 1, which received Royal Assent on June 22, 2016, made legislative changes to the EI Act that will reduce the waiting period from two weeks to one. It was announced in Budget 2016 that this change would become effective January 1, 2017.

Changes to the EI Regulations are expected to be introduced as a result of this legislative change.

If any of you have any questions about how this waiting period reduction impacts your disability programs, please contact Wendy Ellen Inc. for assistance.

Thanks for Joining Us!

November is here and our days are getting shorter and colder and work projects are in full swing.

This month we focus on Duty to Accommodate and the obligations of employers to protect and accommodate requests made by employees under legal protected grounds. While it can appear intimidating to handle effectively, the key to successful Duty to Accommodate initiatives is education, understanding, and a robust organizational policy.

Keep reading to learn more!

What is the Duty to Accommodate?


The duty to accommodate is the obligation to meaningfully incorporate diversity into the workplace. The duty to accommodate involves eliminating or changing rules, policies, practices and behaviours that discriminate against persons based on a group characteristic, such as race, national or ethnic origin, colour, religion, age, sex (including pregnancy), sexual orientation, marital status, family status and disability.

Sometimes, workplaces have rules, policies, practices and behaviours that apply equally to everyone, but which can create barriers based on an irrelevant group characteristic. For example, if you require that employees wear a certain uniform, you may create a barrier to someone whose religious practice requires a certain manner of dress.

The duty to accommodate requires employers to identify and eliminate rules that have a discriminatory impact. Accommodation means changing the rule or practice to incorporate alternative arrangements that eliminate the discriminatory barriers

Prohibited Grounds of Discrimination

The Alberta Human Rights Act provides protection from discrimination in the above areas under the following grounds. Employers must accommodate employees who fall into the groups protected by the AHR up to the point of undue hardship, taking into account health, safety and cost.

Race - belonging to a group of people related by common heritage.

Religious beliefs - system of beliefs, worship and conduct (includes native spirituality).

Colour - colour of a person's skin. This includes, but is not limited to, racial slurs, jokes, stereotyping, and verbal and physical harassment.

Gender - being male, female or transgender. Also protected under gender are pregnancy and sexual harassment.

Physical disability - any degree of physical disability, deformity, malformation or disfigurement that is caused by injury, birth defect or illness. This includes, but is not limited to, epilepsy; paralysis; amputation; lack of physical coordination; visual, hearing and speech impediments; and physical reliance on a guide dog, wheelchair or other remedial appliance or device.

Mental disability - any mental disorder, developmental disorder or learning disorder regardless of the cause or duration of the disorder.

Ancestry - belonging to a group of people related by a common heritage.

Age - Age is defined in the Act as "18 years or older." Persons who are 18 years or older can make complaints on the ground of age in all of these areas:

  • statements, publications, notices, signs, symbols, emblems or other representations that are published, issued or displayed before the public
  • employment practices
  • employment applications or advertisements
  • membership in trade unions, employers' organizations or occupational associations

Place of origin - place of birth.

Marital status - the state of being married, single, widowed, divorced, separated, or living with a person in a conjugal relationship outside marriage.

Source of income - Source of income is defined in the Act as lawful source of income. The protected ground of source of income includes any income that attracts a social stigma to its recipients, for example, social assistance, disability pension, and income supplements for seniors. Income that does not result in social stigma would not be included in this ground.

Family status - being related to another person by blood, marriage or adoption.

Sexual orientation - This ground includes protection from differential treatment based on a person's actual or presumed sexual orientation, whether homosexual, heterosexual or bisexual.

Source: www.albertahumanrights.ab.ca

Understanding and effecting Duty to Accommodate requests requires expert knowledge and experience.
Contact Wendy Ellen Inc. for assistance today!

Duty to Accommodate: A General Process for Managers


Step 1: Recognize the Need for Accommodation

The duty to accommodate is not about employee preferences; it is about removing discriminatory barriers that are prohibited by the Canadian Human Rights Act.

* An employee or candidate has requested accommodation.
* You are aware that accommodation may be needed.
* A third party acting on behalf of the employee or candidate has requested accommodation.
* A request does not have to be in writing, and self-identification is not required to receive accommodation.
* Once a need has been identified, the onus is legally on you as a manager to accommodate.


Step 2: Gather Relevant Information and Assess Needs

All accommodation documents must be kept confidential and separate from all human resources files.

* Ask the employee or candidate what type of accommodation is needed. If applicable, ask the individual to provide supporting documentation, e.g., from a doctor.
* Find out about your organization's requirements and processes.
* Document your steps and keep your organizational contact informed.
* Consult other resources if needed (your organizational contact, health professional or other functional specialists). For accommodation related to religious holidays and observances, gather relevant information and refer to relevant collective agreements and policies.
* Assess the work environment of the employee to determine the best way to meet the request.
* Identify any implications or issues for the rest of your team. You may need to involve the employee representative.


Step 3: Make an Informed Decision

Each person has unique needs. Work in partnership with the individual to find a solution.

* Take the time to review the request, understand the needs and review supporting documentation to find the most effective, practical and cost-efficient solution.
* Work with all interested parties, including the employee, the employee representative, functional specialists and, if necessary, co-workers for successful accommodation.
* Document the accommodation agreement according to your organization's processes, and keep your organizational contact up to date on a timely basis.


Step 4: Implement the Decision

Accommodation is about removing barriers to enable an employee to perform and contribute fully to the organization.

* Put in place the appropriate mechanisms to implement the agreed-upon approach.
*Advise the individual of the rationale behind your decision, particularly if the request is denied based on a bona fide occupational requirement and/or undue hardship for the employer.
* Ensure that the individual is aware of all available recourse mechanisms (including the Informal Conflict Management System, the departmental ombudsman, the Canadian Human Rights Commission, etc.).
*Consult with the individual regarding the best approach to explaining the accommodation to anyone affected by the measures, if necessary.


Step 5: Follow Up and Keep Records

You should respect the dignity and privacy of the person being accommodated. Communicate only what you need to those who need to know.

* Regularly follow up with the individual and modify the accommodation if necessary.
* Document any changes and provide pertinent information to your organizational contact on a timely basis, respecting privacy and confidentiality.
* Integrate accommodation needs into future human resources and business planning.

Accommodation is made on a case-by-case basis, and the process should be as uncomplicated as possible. The process should respect the dignity and privacy of the person being accommodated and must be provided on a timely basis.

Successful accommodation requires collaboration from all parties, including the employee, the employer, the employee representative, functional specialists and co-workers.


Quick Reference: To What Extent is Accommodation Required?

The Supreme Court of Canada has ruled that employers and service providers have a legal duty to take reasonable steps to accommodate individual needs to the point of undue hardship. To substantiate a claim of undue hardship, an employer or service provider must show that they would experience more than a minor inconvenience. In many cases, accommodation measures are simple and affordable and do not create undue hardship.

Undue hardship occurs if accommodation would create onerous conditions for an employer or service provider, for example, intolerable financial costs or serious disruption to business. An employer or service provider must make considerable effort to find an appropriate accommodation for an employee. Some hardship may be necessary in making an accommodation; only when there is 'undue' hardship can the employer or service provider claim that they have tried all the accommodations available.

Source: albertahumanrights.ab.ca



Quick Reference: Performance and the Duty to Accommodate

Performance problems can sometimes tell you that there may be a need to accommodate, even when the employee has not asked for an accommodation. As a manager, you are obligated in certain circumstances to initiate action to determine if an accommodation is needed, even if the employee has not asked for it. You are encouraged to consult with your organization's human resources/labour relations functional specialists for guidance. The following are some examples of signs that might require further investigation to assess whether accommodation is needed:

* Feedback from co-workers indicating that the employee is behaving erratically;
* A sudden drop in attendance and increase in sick leave use;
* An increase in lateness;
* Sudden changes in behaviour; or unusually poor work performance.

If you have spoken to the employee about specific behaviours and offered the option of accommodation on several occasions, and the individual does not wish to pursue the matter, remember to document the steps you took to show that you did everything you could to help the employee and that you fulfilled your obligations regarding the duty to accommodate. Be sure to advise the employee of available services, such as the Employee Assistance Program (EAP).

Example

You notice that a previously reliable employee is missing deadlines. On speaking with the employee, you have reason to suspect that stress or a mental health problem might be the cause. It is important when broaching this that the conversation is caring and compassionate, one that is genuine and opens the door to letting the employee indicate what is going on in their life. You suggest that the employee seek professional help and make sure he or she knows how to use your organization's EAP. Tell the employee that you can make adjustments to his or her schedule to accommodate any treatment that might be required. Make sure the employee understands that once he or she receives treatment, the health care provider can help by suggesting changes at work to enable the employee to better manage his or her workload. With the employee's consent, you obtain this information from the treating physician or counsellor, who recommends giving the employee more uninterrupted time at work so he or she can meet deadlines. You make this adjustment and you meet regularly with the employee to ensure that the accommodation is working.

Source: Government of Canada




Quick Reference: Accommodating People With Disabilities


Many complaints about accommodation relate to the grounds of physical and mental disability.

The Alberta Human Rights (AHR) Act says that physical disability means "any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness." Some disabilities that have been established as protected under human rights law are: epilepsy/seizures, heart attack/heart condition, cancer, severe seasonal allergies, shoulder or back injury, asthma, Crohn's disease, hypertension, hysterectomy, spinal malformation, visual acuity, colour blindness, loss of body parts such as fingers, speech impediments, arthritis, muscular atrophy, cerebral palsy, alcoholism, and drug dependence.

Common conditions such as colds and flus that do not last long and have no long-term effects are not normally considered to be physical disabilities.

Mental disabilities are defined by the AHR Act as "any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder." Some examples of mental disabilities include: dyslexia, depression, schizophrenia, obsessive compulsive disorder and panic attacks.

It is not possible to provide a complete list of conditions normally considered to be disabling under human rights law. The disabilities listed above are examples only.



About Wendy Ellen Inc.

Wendy Ellen Inc. specializes in providing human resource and benefits management skills to small to mid-sized companies on an as-needed basis. From recruitment, Human Resource policy development and legislative compliance, employee retention and engagement, individual advisor/coaching, succession planning to employee development and performance, Wendy Ellen Inc. will help you protect your most valuable resource, your people.

Contact Us
http://www.wendyelleninc.ca
wendy@wendyelleninc.ca
Contact Wendy Ellen Inc. today to discuss your human resources needs.

403-815-4336



Copyright © 2017 Wendy Ellen Inc. All Rights Reserved

  • Calgary Office
  • #610 999 8 St SW
          Calgary, AB T2R 1J5
  • 403-815-4336
  • 403-217-3147
  • Edmonton Office
  • #610 999 8 St SW
          Sherwood Park, AB T8H 1M6
  • 780-289-4950