INDEX. October 2014 IN-1

Transcription

1 INDEX absence duty to accommodate, 4:5400 union employees, of. See union employees accommodate, duty to adverse effect discrimination and, 4:5300 AIDS, re. See AIDS disability alcohol addiction, 3:9000 arbitration re, 3:3300 described, 4:5100 employee s, 4:5700 employer s, scope of absences caused by disability, 4:5400 financial costs, 4:5400 inconvenience vs. hardship, 4:5400 Ontario Human Rights Code provision re, 4:5400 Ontario Human Rights Commission guidelines re, 4:5400 poor job performance, 4:5400 undue hardship test, 3:3300, 4:5400 epilepsy, 3:7200 evolution of law re, 4:5300 generally, 4:5100 perfect accommodation, 4:5400 pregnant police, 4:5400 proactive approach, 4:5410 process of accommodation, 4:5410 proof of accommodation employer s onus, 4:5600 purpose of, 4:5200 rational connection requirement, 4:5500 act of God, 2:4300 adverse effect discrimination. See discrimination advertising, job discrimination in, 4:3210 AIDS disability accommodate, duty to employee, of, 4:8440 generally, 4:8430 October 2014 IN-1

2 Illness and Disability in the Workplace AIDS disability continued accommodate, duty to continued Ontario Human Rights Commission policy statement re, 4:8430 AIDS-related complex (ARC), 4:8200 bona fide occupational requirement defence economic risk, 4:8412 reasonable cause, 4:8420 safety risk ACR stage complications, 4:8411 risk of infection, 4:8411 physical conditions of employment, 4:8411 medical care demands, 4:8411 discrimination effect of exclusion clause, re disability insurance, 4:8425 exemptions to prohibition against, 4:8425 HIV infection as physical disability, 4:8310 nature of, 4:8320 generally, 2:8440, 4:8100 HIV infection physical disability, whether, 4:8310 symptoms and stages of, 4:8200 testing for, 4:8200 union employee and, 3:10000 alcohol and drug abuse. See illnesses; union employees arbitration Canada Labour Code attendance programs, 3:5000 generally, 3:3500 Charter of Rights, 3:3400 constitutional jurisdiction re, 3:3200 employment standards legislation, 3:3600 human rights legislation accommodation requirement, 3:3300, 3:3350 arbitrator s duty to apply, 3:3300 discrimination prohibition, 3:3300 non-culpable absenteeism, 3:3300 union as party to, 3:3300 jurisdiction of arbitrator, 3:1000, 3:3300 legislation and, 3:3100 medical records, admissibility of, 3:16000 attendance programs Canada Labour Code, under, 3:5000 IN-2

3 Index attendance continued programs continued non-union employer, sample, App:5100 union employer, sample, App:5200 requirements adverse effect discrimination, as, 4:3250, 4:3263 bona fide occupational requirement (BFOR) accommodate, duty to. See accommodate, duty to AIDS, re. See AIDS disability defence, as, 4:4100 defined, 4:4200 direct vs. adverse discrimination, 4:4100 economics, based on, 4:4600 efficiency requirements, based on, 4:4700 onus on employer to prove decrease in efficiency, 4:4700 intelligence requirement, 4:4700 proof re, standard of, 4:4800 safety risks, based on generally, 4:4500 individual testing, 4:4520 impossibility of, 4:4521 real risk test, 4:4510 successful BFOR defences emergency uncertainty, 4:4540 uncontrolled disability, 4:4540 visual acuity cases, 4:4540 sufficiency of risk, 4:4510 unacceptable risk test, 4:4510 unsuccessful BFOR defences disability under control, 4:4530 no connection between occupational requirement and work performed, 4:4530 small risk to employee/no risk to co-workers, 4:4530 waived BFORs, 4:4540 tests re generally, 4:4200 good faith requirement, 4:4300 objective test, 4:4400, 4:4500 subjective test, 4:4300 steps in proving, 4:4500 booklets, benefits, policies and brochures, 5:3210 breach of contract damages for, 2:3000 April 2014 IN-3

4 Illness and Disability in the Workplace Canada Labour Code. See arbitration Canada Pension Plan administration of, 6:3200 benefits, 6:3600 contributions, payment and collection of, 6:3500 disability benefits, 6:3800 amount of, 6:3800 contribution requirement, 6:3800 extent of disability, 6:3800 eligibility, 6:3400 history of, 6:3100 retirement pension, 6:3700 survivor s benefits, 6:3900 tax implications, 6:3300 workers compensation and, 6:1930 Charter of Rights arbitration and, 3:3400 jurisdiction of, 4:2000 reasonable cause for discrimination and, 4:6000 chronic fatigue syndrome, 2:8450 chronic pain syndrome workers compensation coverage, 6:1460 civil action disability benefits, re. See disability benefits disability insurance punitive and aggravated damages and costs, 5:7000 remedies re. See disability insurance workers compensation, re, 6:1910 collateral benefits disability benefits, and, 2:5000 effect of termination on life insurance, 2:6000 long-term disability, 2:6000 nature of insurance, 2:5000, 2:5120 non-deductibility, 2:5000 private insurance, 2:5000, 2:5120 rule against double recovery, 2:5000, 2:5120 severance payments, subtraction from, 2:5000, 2:5120 tortious interference, 2:7000 collective agreement. See also union employees collective agreement disability insurance, description of benefit, 3:6000ff., 5:1100 IN-4

5 Index collective agreement continued effect of, on human rights legislation, 4:5400 medical certificate requirement, 3:12200 compassionate care leave, 6:2520 courts jurisdiction re union employee, 3:1000 death reasonable notice period, during, 2:6000 workers compensation coverage, 6:1460, 6:1540 diabetes, 2:8420, 3:7100 direct discrimination. See discrimination disability benefits. See disability benefits discrimination, 4:3100 insurance. See disability insurance long-term benefits. See disability insurance meaning of, under human rights legislation, 4:3100 perceived, 4:3100 permanent. See permanent disability short-term benefits. See disability benefits visual. See visual disability disability benefits civil action re statement of claim, App:3300 statement of defence, App:3400 deduction from reasonable notice requirements benefits vs. insurance payments, 2:5000, 2:5120 collateral benefits. See collateral benefits conflicting cases re effect of, 2:5100, 2:5200, 2:5300, 2:5000 double recovery, 2:5000, 2:5110, 2:5120, employee contribution requirement, 2:5000, 2:5120, 2:5200, 2:5300 frustrating purpose of reasonable notice, as, 2:5000, 2:5110 liability for after termination, 2:6000 replacement benefits, cost of, 2:6000 short-term collective agreement, under, 3:6100 deduction from recovery of lost wages, 2:5000 sick-leave plans, 5:2100 statutory deductions, 2:5410 termination, effect on, 2:6000 topping up, 2:9300 April 2014 IN-5

6 Illness and Disability in the Workplace disability benefits continued tortious interference with, 2:7000 disability insurance adminisration of employer, 5:6000ff. insurer, 5:5100 benefits. See also disability benefits booklets re benefits priority over policy, 5:3210 description of, 5:1100 limits to, 5:6500 cancellation of, due to non-remittance of premiums when due, 5:6400 collateral benefits and. See collateral benefits collective agreement provision for, 5:1100, 5:1200 common law entitlement absent specific agreement, 5:2000 contractual based, 5:2200 human rights implications, 5:2300 short-term sick leave plans, 5:2100 damages for wrongful termination of benefits aggravated damages, 5:7000 punitive or exemplary damages, 5:7000 employer s obligations duty to employee, 5:6200 policy administration, 5:6100 termination of employment, on, 5:6300 employment, continued availability of occupation vs. job, 5:3700 relevance of, 5:3700 evidence of disability assessment of limitations, 5:3400 burden of proof, 5:5000 medical diagnosis, 5:3400 other activities engaged in, 5:31000 termination of benefits, 5:3400 generally, 5:1000 group coverage conversion to individual policy, 5:3300 generally, 5:1000 indemnity, 5:8320 insurance legislation and, 5:1300 insurer s duty duty of good faith and fair dealing, 5:5100 legal principles, summary of, 5:8400 IN-6

7 Index disability insurance continued long-term, 5:3000ff. medical exam, compelling, 5:5050 medical treatment, 5:4000 mental disabilities and stress, 5:3500 policy cancellation of, 5:3120 elimination period, 5:3100 insurability, 5:3110 interpretation of contra proferentum doctrine, 5:3200 intention of parties, 5:3200 rational and practical construction rule, 5:3200 substantial ability test, 5:3200 total disability, meaning of, 5:3200 pre-existing condition, 5:31100 proof, burden of employee, on, 5:5000 medical exam compelled, 5:5050 shifting to insurer, 5:5000 recurrent disability, 5:3600 rehabilitation programs, 5:4000 remedies forfeiture, relief from, 5:8300 injunction, 5:8315 limitation periods, 5:8200 proper forum, 5:8100 subrogation, 5:8320 summary judgment, 5:8310 unionized employee, for, 5:1200 remuneration, level of, 5:3800 retraining, 5:3900, 5:4000 return to work, temporary, 5:3910 self-employed persons, 5:1000 stress, for, 5:3500 termination of employment effect of benefits on, 2:5000ff. entitlement after, 5:3300, 5:6300 total disability, definition variety, 5:3100, 5:3200 Uniform Accident and Sickness Policy Act, 5:1300 discrimination adverse effect, 4:1000 attendance requirements, 4:3250, 4:3263 described, 4:3240 April 2014 IN-7

8 Illness and Disability in the Workplace discrimination continued adverse effect continued examples of, 4:3250, 4:3263 minimum standards of performance, 4:3250 AIDS, against persons with. See AIDS disability alcohol and drug policies, 4:3262, 4:4530, 4:5400 attendance requirements and, 4:3263 bona fide occupational requirement defence. See bona fide occupational requirement (BFOR) defences accomodation, proof of, 4:5000ff., 4:8400 BFOR, 4:4000ff., 4:8400ff. reasonable cause, 4:6000, 4:8400 direct, 4:1000 described, 4:3250, 4:3263, 4:4521, 4:5300 examples of, 3:3300, 4:3260ff. minimum medical standards, 4:3261, 4:4300 poisoned work environment, 4:3262 proof of, 4:3270 harassment and, 4:3262 meaning of, evolutionary, 4:3240 prima facie case, 4:3000 advertising and recruitment context, 4:3210 direct or adverse effect discrimination, 3:3300, 4:1000 disability conditions considered, 4:3100 meaning of, 4:3100 mistaken belief re, 4:3100 perceived but undiagnosed, 4:3100 employment context, 4:3200ff. exemptions domestic employees, 4:3230 preferential treatment, 4:3230 protected categories, 4:3230 retirement/employee benefit plans, 4:3230 specific legislative provisions, 4:3230 liability, 4:3220 (The next page is IN-9) IN-8

9 Index discrimination continued prima facie case continued onus of proving, 4:3000 proof of, 4:3270 Alberta Human Rights Act, 4:6000 rational connection of rules to job, 4:5500 reasonable cause for Alberta Individual Rights Protection Act, 4:6000 Charter test, 4:6000 statutory exemptions allowing, 4:8425 unified test, 4:1100, 4:1200 disease AIDS. See AIDS disability diabetes, 2:8420, 3:7100 epilepsy, 2:8420, 3:7100 heart disease. See heart disease mental illness, 2:8300, 3:8000, 6:1450 workers compensation coverage, 6:1450 dismissal. See termination of employment doctor s certificate. See medical certificate drug addiction. See illnesses; union employees drug testing, mandatory, 3:9000 duty to accommodate. See accommodate, duty to employee common law, 1:2000 disability insurance, burden of proof re, 5:5000 domestic, 4:3230 duty to accommodate, 4:5700, 4:8440 union. See union employees employee assistance programs, 3:9200 employer common law employee, 1:2000 disability insurance obligations. See disability insurance duty to accommodate. See accommodate, duty to employee illness, response to. See illnesses lump sum severance payment, liability for, 2:6000 permanent vs temporary illness factors, 2:4300 employment contract. See employment contract October 2014 IN-9

10 Illness and Disability in the Workplace employment continued discrimination in, 4:3200 fitness to resume, 3:12400 relationship. See employment relationship termination of. See termination of employment (common law) employment application falsification of re medical history, 3:12800 employment contract alcohol and drug abuse term, 2:8110 breach of, 2:3000 frustration of, 2:4200, 2:4300 human rights legislation, effect of, 4:1000 employment insurance benefits coverage, 6:2200 eligibility, 6:2300 history of, 6:2100 purpose of, 6:2100 self-employment, 6:2600 special benefits, 6:2500 compassionate care, 6:2520 illness, 6:2510 maternity, 6:2510 parental, 6:2510 unemployment benefits, 6:2400 employment relationship breach of contract, 2:3000 business efficacy factor, 2:4300 specific enforcement of, 2:2100 employment standards legislation, 3:3600 epilepsy, 2:8420, 3:7100 evidence. See also proof absences from work, 3:2100 disability, of. See disability insurance frustration of contract, of, 3:2000 surveillance, 3:13000 frustration of contract absences from work as, 3:2000 termination of ill or disabled employee for, 2:4200 handicap collective agreement benefits provision, App:4500 IN-10

11 Index heart disease physical illness, as, 2:8410 union employee with, 3:7300 HIV. See AIDS disability human rights legislation. See also discrimination accommodate, duty to. See accommodate, duty to arbitration and. See arbitration bona fide occupational requirement defence. See bona fide occupational requirement (BFOR) Charter of Rights jurisdiction, 4:2000 contractual relationship, effect on, 4:1000 contravention of remedies, 4:7000 discrimination, prohibition against. See discrimination generally, 4:1000 interpretation of, 4:1000 jurisdiction over disputes, 4:2000 purpose of, 4:1000 remedies for contraventions, 4:7000 illnesses alcohol and drug abuse alcoholism as illness, 2:8150 alcoholism and drug abuse as disability, 4:5400 employment contract term, 2:8110 generally, 2:8110, 2:8160 mitigating circumstances, 2:8140 summary dismissal, as grounds for, 2:8110 warnings re, 2:8120 work record as factor, 2:8130 workers compensation coverage, 6:1460 employer s response to assessment of problem, 2:9100 lump sum severance payment, 2:9300 practical solutions, 2:9000 reasonable notice of termination, 2:9300 termination strategies, 2:9200 topping-up disability payments, 2:9300 workers comp. supplement, 2:9300 gambling, 2:8200 mental illness, 2:8300, 6:1450 physical illness AIDS. See AIDS disability October 2014 IN-11

12 Illness and Disability in the Workplace illnesses continued physical illness continued chronic fatigue syndrome, 2:8450 diabetes, 2:8420, 3:7100 epilepsy, 2:8420, 3:7100 heart disease. See heart disease physical fitness, 2:8430 stress-related illnesses, 2:8300 insurance. See disability insurance insurance payments death during reasonable notice period, 2:6000 deductibility from reasonable notice requirements, 2:5000, 2:5110 jurisdiction arbitration, 3:3200 arbitrator, 3:1000, 3:3300 Charter of Rights, 4:2000 courts over union employee, 3:1000 human rights, 4:2000 workers compensation, 6:1200 just cause innocent absenteeism and, 2:4100 termination, for, 2:2100 long-term disability benefits. See disability insurance medical certificate requirement re union employees. See union employees requirement to provide, 3:12200 examination arbitrator s authority to order, 3:12600 independent, 3:12300 union employees, re. See union employees fitness union employees, re. See union employees history falsification of employment application re, 3:12800 records admissibility of, 3:16000 mental disability insurance benefits for, 5:3500 illness. See illnesses; union employees IN-12

13 Index notice, reasonable death during period of, 2:6000 deductions from. See disability benefits disability benefits, effect on, 2:5000ff. frustration of contract and, 2:4200 insurance payments, deductibility of from, 2:5000, 2:5110 medical condition, effect on, 2:3100 termination of employment, of pay in lieu of notice, 2:9300 requirement, 2:2200 severance pay vs. notice, 2:4100 occurrence report sample, App:5300 Ontario Human Rights Commission duty to accommodate guidelines, 4:5400, 4:8430 parental leave, 3:11000 permanent disability business efficacy factor, 2:4300 extent of disability, 2:4300 factors to determine, 2:4300 frustration of employment contract, 2:4300 long-term employee, 2:4300 sick benefits as factor, 2:4300 physical fitness, 2:8430 physical illness. See Illnesses practical solutions, 2:9000, 3:17000 pregnancy leave, 3:11000 proof accommodation, of, 4:5600 BFOR, standard re, 4:4800 disability insurance, burden re, 5:5000 discrimination, of, 4:3270 evidence of disability, burden re, 5:5000 reasonable notice. See notice, reasonable rehabilitation addicts, of, 3:7400, 3:9000, 3:9200 benefits payable, 6:1560 programs, 5:4000 October 2014 IN-13

14 Illness and Disability in the Workplace return to work right to, 3:14000 rules, employer s, 3:9200 safety risks. See bona fide occupational requirement (BFOR) sealed building syndrome, 6:1460 self-employed persons disability insurance for, 5:1000 unemployment insurance benefits for, 6:2600 severance payment, 3:15000 lump sum continuing liability of employer, 2:6000 to ill employee, 2:9300 sick benefits permanent disability factor, 2:4300 workers compensation, effect on, 6:1920 sick leave collective agreement provision re, App:4100-App:4140 credits, effect of on absence complaint, 3:2200 misuse of, 3:12700 surveillance evidence of person on, 3:13000 short-term plans, 5:2100 specific enforcement employment contract, of, 2:2100 statement of claim disability benefits, civil action re, App:3300 wrongful dismissal action, App:3100 statement of defence disability benefits, civil action re, App:3400 wrongful dismissal action, App:3200 stress disability insurance for, 5:3500 physical illness, as, 2:8200 stress-related illness, 2:8300 union worker and, 3:8000 workers compensation coverage for, 6:1460 termination of employment common law and assessment, 2:9100 IN-14

15 Index termination of employment continued common law and continued breach of contract, 2:3000 disability benefits effect of, 2:5000 effect on, 2:6000 tortious interference with, 2:7000 employer considerations, 2:1000 generally, 2:2100 ill or disabled employee frustration, 2:4200 permanent disability determining, 2:4300 frustration due to, 2:4200 right to notice or severance pay innocent absenteeism vs. just cause, 2:4100 self-induced illness, 2:4100 just cause, 2:2100 letter of, App:1300 notice of, 2:2200, 2:9200, 2:9300. See also notice, reasonable reasonable notice. See also notice, reasonable length of notice period, 2:2200 obligation to work during, 2:2200 pay in lieu of, 2:9300 purpose of, 2:2200 requirement, 2:2200 suspension of period, 2:5000, 2:5110 specific enforcement of employment contract, 2:2100 union employees. See union employees torts negligent interference with provision of benefits, 2:7000 undue hardship defence to accommodation duty, as, 4:5400 union employees absences from work bona fide illness or disability discipline, 3:2000 evidential burden, 3:2000 termination grounds, 3:2000 culpable, 3:2000 disability benefits, 3:2200 fitness to resume employment, 3:12400 October 2014 IN-15

16 Illness and Disability in the Workplace union employees continued absences from work continued frustration of contract evidence to be considered, 3:2000 non-culpable nature of, 3:2000 sick leave credits, effect of, 3:2200 test re, 3:2000 lengthy medical evidence, 3:2100 termination, as justification for, 3:2100 sick leave credits, effect of, 3:2200 surveillance evidence, 3:13000 AIDS, 3:10000 discrimination, 3:10000 HIV infection, 3:10000 termination, justified, 3:10000 alcohol addiction, 3:9000 accommodation duty, 3:9000 applicable grievance principles, 3:9000 employee assistance programs, 3:9200 employer rules and policies, 3:9200 illegal drug use, 3:9000 mandatory drug testing, 3:9000 rehabilitation, 3:7400, 3:9000, 3:9200 arbitration process. See arbitration arbitrator, jurisdiction of, 3:1000 attendance programs, 3:5000, App:5200 Canada Labour Code. See arbitration Charter of Rights. See arbitration collective agreement attendance programs, 3:5000, App:5200 deemed termination provisions, 3:4000 effect on termination right, 3:1000 illness and disability benefits under long-term, 3:6100 short-term, 3:6100 sample provisions, App:4000 benefits, App:4300 group insurance premiums, App:4310 handicapped employees, App:4500 prepaid health benefits, App:4400 sick leave, App:4100 workers compensation, App:4200 court jurisdiction re, limitations on, 3:1000 diabetes, 3:7100 IN-16

17 Index union employees continued drug addiction, 3:9000 employment and labour standards. See arbitration epilepsy, 3:7200 duty to accommodate, 3:7200 generally, 1:3000, 3:1000 heart disease, 3:7300 human rights legislation and. See arbitration jurisdiction, federal and provincial. See arbitration legislation and. See arbitration medical certificate requirement collective agreement basis, 3:12200 generally, 3:12100 independent verification, 3:12300 reasonable grounds basis, 3:12200 medical examinations arbitrator s authority to order, 3:12600 consent to release information, App:2000 general principles re, 3:12500 independent, 3:12300 sample letters re, App:1000 medical fitness, 3:7000 disability discrimination, 3:7500 employee removal onus, 3:7500 impaired vision, 3:7400 resumption of employment, 3:12400 safety concerns and, 3:7000, 3:7400 diabetes, 3:7100 epilepsy, 3:7200 heart disease, 3:7300 standards re, 3:7400 mental illness, 3:8000 non-culpable dismissal, 3:2000 practical considerations, 3:17000 pregnancy, 3:11000 return to work, fitness to. See also medical right to, 3:14000 sick leave, misuse of, 3:12700 surveillance evidence of, 3:13000 smoking bans, 3:7400 stress, 3:8000 summary re, 3:17000 surveillance evidence, admissibility, 3:13000 termination of employment deemed collective agreement provisions, 3:4000 April 2016 IN-17

18 Illness and Disability in the Workplace union employees continued termination of employment continued letter re, App:1300 severance pay, 3:15000 wrongful dismissal law, non-applicability of, 3:1000 unionized workplace. See also union employees court jurisdiction re, limitations on, 3:1000 visual disability BFOR cases, 4:4540 medical fitness and, 3:7400 workers compensation appeals, 6:1620 assessments, 6:1800 benefits payable, 6:1500 death, 6:1540 disability payments, 6:1530 permanent, 6:1533 temporary partial, 6:1532 temporary total, 6:1531 income replacement, 6:1520 medical, 6:1510 protection of, 6:1550 rehabilitation and care, 6:1560 boards, 6:1300 claims, 6:1600 appeals, 6:1620 primary adjudication, 6:1610 class action lawsuits, 6:1630 coverage re: 6:1400 alcoholism, 6:1460 causation, 6:1460 chronic pain syndrome, 6:1460 death, 6:1460 diseases, 6:1450 employer, definition of, 6:1420 industries covered, 6:1410 injuries, 6:1450 period of, 6:1440 persons covered by legislation, 6:1430 mental disorder, 6:1450 misconduct of worker, 6:1460 sealed building syndrome, 6:1460 stress, 6:1460 IN-18

19 Index workers compensation continued distinguished from other benefits, 2:5000, 2:5200, 2:5400, 2:5410 generally, 6:1100 jurisdiction re, 6:1200 limitation periods, 6:1700 introduction, 6:1100 other systems, interaction with, 6:1900 auto insurance benefits, 6:1960 Canada/Quebec Pension Plan, 6:1930 civil liability, 6:1910 disability insurance, 6:1950 Government Employees Compensation Act, 6:1990 occupational health and safety, 6:1980 sick pay, 6:1940 unemployment insurance benefits, 6:1920 welfare, 6:1970 waiver of benefits, 6:1550 wrongful dismissal action sample pleadings, App:3000 statement of claim, App:3100 statement of dismissal, App:3200 union employee, non-applicability to, 3:1000 wrongful termination of benefits insurance benefits, 5:7000 April 2016 IN-19