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Making Allowances – Accommodating Mental Illness and Addictions at Work (Canada)

Dr. Baker reviews the more common disabling conditions and describes the steps between the first appearance of a problem in the workplace, its diagnosis, treatment, and the employee’s return to work as practiced in Canada. A balance is struck between safety, human rights, performance, and the employee’s medical care. A panel discussion follows of the …

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Canadian Jurisprudence: Recent developments in the duty to accommodate employees’ disabilities.

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A discussion of the relevance of the ADA to the arbitration of disciplines for poor attendance. The author observes that ADA employment protections are narrowing over time.

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A mock arbitration and trial – by judge and by jury – of a single set of stipulated facts, reveals the differences between each adjudicatory process. The elements of the case involve just cause, the Federal ADA, and a state law against discharge due to mental disability. Judge Edwards’ instructions to the jury include a …

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The author explains why he deems it advisable for management to encourage submission of ADA claims to arbitration. He notes the relevance of Gilmer (in which the Supreme Court ruled that an individual’s waiver of judicial enforcement of a statutory claim is enforceable, as opposed to waiver of such rights by the union for its …

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A summary of the effects of the Civil Rights Act of 1991, and observation that the Act will have little effect on arbitration under CBAs, whereas the ADA will impose requirements at odds with the National Labor Relations Act and, correspondingly, common CBA provisions. The Court’s distinctions between Gilmer and Gardner-Denver are examined. Representatives of …

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A description of the common law duty of loyalty as applied by courts, compared to the duty as construed by arbitrators under CBAs. The employee conduct reviewed includes competition with the employer, preparation for such competition, doing work for a competitor, engaging in conduct that impairs performing for the employer, the adherence to religious beliefs …

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Management’s perspective of arbitration decisions and judicial rulings affecting physical and mental disabilities, no smoking rules, AIDS, health insurance, and employee rights under federal statutes.

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Arbitration of discrimination grievances

The author discusses the statutes enacted between 1963 and 1978 prohibiting discrimination because of race, color, sex, religion, national origin, and age, and the practical limits of arbitration under collective bargaining agreements to the resolution of discrimination claims. Nonetheless, the author forecasts that arbitration will play a valuable role in the resolution of discharge cases …

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