TR Members: Medical conditions and the duty to accommodate
February 25, 2005
Further to numerous attempts to reach an informal resolution regarding the duty to accommodate, it seems that stronger measures are required in order to make the Translation Bureau meet its legal obligations in this regard. On December 6, 2004, CAPE sent a formal letter to the Bureau requesting that it reconsider its position, and reminding them of the legislation and policies that the Bureau is violating. For your information, a translation, in part, of the letter follows:
After consulting our legal advisers, and as we have frequently suggested to you, we are of the view that what you are proposing is discriminatory under the Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service, human rights legislation, and recent jurisprudence of the Supreme Court of Canada.
An employer cannot insist on a universal standard while refusing to take individual employees' needs into account…
….Thus, according to the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (British Columbia Government and Service Employees' Union) [1999] 3 S.C.R. 3 at paragraph 68:
Employers designing workplace standards must be aware of both the differences between individuals, and differences that characterize groups of individuals… To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation…
The Policy reflects this approach, and demands accommodation measures that meet the individual needs of employees. According to the Policy:
Accommodation must also be based on the circumstances of each case…
As you may have noted, CAPE objects to the principle of a seemingly neutral rule that in reality adversely affects certain individuals - those who suffer from a medical condition. Thus, if your physical or psychological health prevents you from achieving the quantitative objective imposed, the adverse effect could manifest itself in a poor performance appraisal, a higher level of stress, aggravation of an existing medical condition and so on. A very wide variety of medical conditions have the potential to create a duty to accommodate on the part of the employer. These include chronic stress, depression, physical impairments such as musculoskeletal problems as well as other well known disabilities.
If you have a medical condition, and the performance objectives (2.67) imposed by the employer are causing difficulties, please advice CAPE so that we can take action to obtain the accommodation you require. Should CAPE not be able to obtain accommodation for your individual circumstances, we could assist you in filing a human rights complaint. In order to obtain relief which could include retroactive benefits flowing from a successful complaint, it would be helpful if you contact us and request assistance.
Please note that under the legislation, it is not necessary to have suffered consequences, for example aggravation of an existing medical condition, in order to file a complaint with the Human Rights Commission.
Given the serious consequences of the employers' new performance objectives on disabled workers, CAPE may also file a human right complaint flowing from the imposition of this new standard. Certain actions, including approaching Treasury Board Secretariat, are also being considered.
If the Bureau has refused to accommodate you, we are available to assist you in filing a complaint with the Canadian Human Rights Commission. You may contact Anita Bangiricenge at abangiricenge@acep-cape.ca as soon as possible, in order to comply with the time limits for seeking redress. We will contact you should we require additional information. Please pass this information along to your colleagues.
February 25, 2005
Further to numerous attempts to reach an informal resolution regarding the duty to accommodate, it seems that stronger measures are required in order to make the Translation Bureau meet its legal obligations in this regard. On December 6, 2004, CAPE sent a formal letter to the Bureau requesting that it reconsider its position, and reminding them of the legislation and policies that the Bureau is violating. For your information, a translation, in part, of the letter follows:
After consulting our legal advisers, and as we have frequently suggested to you, we are of the view that what you are proposing is discriminatory under the Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service, human rights legislation, and recent jurisprudence of the Supreme Court of Canada.
An employer cannot insist on a universal standard while refusing to take individual employees' needs into account…
….Thus, according to the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (British Columbia Government and Service Employees' Union) [1999] 3 S.C.R. 3 at paragraph 68:
Employers designing workplace standards must be aware of both the differences between individuals, and differences that characterize groups of individuals… To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation…
The Policy reflects this approach, and demands accommodation measures that meet the individual needs of employees. According to the Policy:
Accommodation must also be based on the circumstances of each case…
As you may have noted, CAPE objects to the principle of a seemingly neutral rule that in reality adversely affects certain individuals - those who suffer from a medical condition. Thus, if your physical or psychological health prevents you from achieving the quantitative objective imposed, the adverse effect could manifest itself in a poor performance appraisal, a higher level of stress, aggravation of an existing medical condition and so on. A very wide variety of medical conditions have the potential to create a duty to accommodate on the part of the employer. These include chronic stress, depression, physical impairments such as musculoskeletal problems as well as other well known disabilities.
If you have a medical condition, and the performance objectives (2.67) imposed by the employer are causing difficulties, please advice CAPE so that we can take action to obtain the accommodation you require. Should CAPE not be able to obtain accommodation for your individual circumstances, we could assist you in filing a human rights complaint. In order to obtain relief which could include retroactive benefits flowing from a successful complaint, it would be helpful if you contact us and request assistance.
Please note that under the legislation, it is not necessary to have suffered consequences, for example aggravation of an existing medical condition, in order to file a complaint with the Human Rights Commission.
Given the serious consequences of the employers' new performance objectives on disabled workers, CAPE may also file a human right complaint flowing from the imposition of this new standard. Certain actions, including approaching Treasury Board Secretariat, are also being considered.
If the Bureau has refused to accommodate you, we are available to assist you in filing a complaint with the Canadian Human Rights Commission. You may contact Anita Bangiricenge at abangiricenge@acep-cape.ca as soon as possible, in order to comply with the time limits for seeking redress. We will contact you should we require additional information. Please pass this information along to your colleagues.