Human Rights and Accommodation

Our team is recognized for its extensive experience in human rights.  We are regularly asked to serve as keynote speakers in leading human rights conferences throughout Canada, and publish on a variety of human rights related issues.

Our day-to-day practice includes advice on compliance with human rights legislation, assistance in the development of human rights policies, design and delivery of training programs, and acting as counsel before human rights adjudicators and courts in the event of a complaint.

Consistent with our practice philosophy we stress prevention and encourage clients to deal proactively with human rights issues rather than waiting to respond reactively to particular complaints.  Where a breach is alleged, we assist clients to address the issues thoughtfully, thoroughly and strategically to resolve the particular case at hand and any broader issue that may exist in the workplace.  This often includes designing and/or implementing effective complaint investigation processes. (see also Workplace Investigations)

If a matter proceeds to a hearing we vigorously advocate on behalf of our clients before the applicable human rights tribunal.  With the recent changes to the Ontario Human Rights Code and the transition to a direct access complaint model, knowledge of the Ontario Human Rights Tribunal’s rules, practices and members is critical to ensuring clients receive the best representation possible.  Our team appears regularly before the Tribunal, representing employers at all stages of the process.

The following are examples of some of our more frequent human rights work:

(i)   Attendance Management and Access to Medical Information

The unauthorized failure to attend for work in a regular and reliable fashion is a breach of an employee’s workplace obligation.  Yet, the appropriate employer response is not always straightforward.

We know from experience early intervention with employees absent from work has proven rewards to business operations.  We also know, given changes to the workplace safety and insurance legislation, there can be significant cost opportunities available to employers who successfully manage attendance.  Yet, absenteeism issues have become increasingly complex due to the interaction of factors including disability, religion, and a range of other human rights, both actual and alleged.

Our team regularly assists employers to design, implement and administer absenteeism control programs to reduce:

  • Culpable absenteeism (i.e., an absence without an acceptable excuse), and
  • Non-culpable absenteeism (i.e., an absence with an acceptable excuse).

We strongly advocate and support our clients in the development and implementation of an integrated absence management system which encourages early intervention with absent employees. Implemented consistently and transparently, an integrated absence management system maximizes the early return to work of employees wherever possible while at the same time respects the health and welfare of the employee.

If an employee’s health may be at issue, the employer often has insufficient medical information on which to base an informed decision. We therefore assist clients to proactively:

  • Implement strategies to elicit medical evidence that is objective, relevant and useful
  • Design and implement drug and alcohol testing as permitted by law
  • Understand the legal implications of medical information received
  • Design strategies to effectively manage short- and long-term disability insurance claims
  • Co-ordinate with insurance carriers to ensure their rights are protected
  • Design and implement strategies to improve an early Return to Work
  • Ensure absent employees participate in Return to Work programs

(ii)   Duty to Accommodate

The question of accommodation arises in a multitude of situations, including: disability (visible, invisible and perceived), family status, creed, sex and gender, to name a few.  We work with clients to determine what, if any, legal obligations are triggered in the face of a request for accommodation, and assist them to find the appropriate balance between operational objectives and the duty to accommodate.

(iii)   ShortTerm and LongTerm Disability

We frequently assist employers with all aspects of disability management and claims.  This includes defending claims against employers regarding disability issues, and developing strategies to return employees to work in a manner that best meets operational objectives.  Recent judicial decisions have also highlighted the potential for employer liability where an employee, whose employment has been terminated, becomes disabled during the notice period.  We assist clients to identify this risk and take steps to minimize potential liability.

(iv)   Alcohol and Substance Use Disorder

Alcohol and substance use issues related to the workplace are among the most difficult for an employer to address, as they often are not known to the employer until a significant incident has occurred. Abuse and addiction are also highly personal matters which require a sensitive balancing of an employer’s need to know with its obligations under human rights and privacy legislation.  We encounter these issues frequently and our lawyers are adept at assisting employers to navigate through the challenging waters.

(v)   Mental Illness

We have seen a significant increase in employee claims for accommodation due to mental illness. Our firm has developed a particular expertise in the area, partnering with a number of medical professionals skilled in both the diagnostic and treatment protocols of such illnesses.

(vi)   Accessibility

Applying our firm’s longstanding expertise in human rights and disability, Sherrard Kuzz LLP has become an industry leader as it relates to the Accessibility for Ontarians with Disabilities Act (“AODA”). Team members frequently publish and speak about the AODA and are routinely asked to lead seminars and workshops on AODA compliance for clients, employer organizations and a variety of speaking houses.

Our firm assists clients in all aspects of compliance with the AODA’s Integrated Accessibility Standards including: education on the substantive requirements of the legislation, legal advice regarding the scope of those requirements, facilitation of audits required to identify barriers, preparation of policies, practices and procedures, assistance with on-going training programs including substantive review of on-line training programs, in-person training of management and front-line employees, and implementation.

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