b'Oncethememberisaccommodated,thereisanaccommodations and a return to a constable role. The ongoing obligation to assess the placement and provideHuman Rights Tribunal of Ontario concluded the employer updated medical information. This may also include evi- had no obligation to accommodate any further.dence of whether the member is cooperating with theDuty to Accommodaterecommended treatment program. The employer may also seek an independent medical examination in someTherearelimitsonthedutytoaccommodate.The circumstances. Where employee co-operation has beenemployer has no obligation to remove the core or essen-problematic, the parties may enter into an agreementtial duties, nor to make the job substantially different. which conditions accommodation and/or future employ- Reasonable performance and productivity standards can ment on compliance with standards of behaviour andbe maintained. Where accommodation in another role is any recommended course of treatment. permanent, the employee may be paid the rate applic-Wheretheaccommodationprocessisnotproperlyable to the position. Where the point of undue hardship implemented,therecanbesignificantconsequencesis reached, reference must be had to the potential ter-for members and management. The decision in OPP v.mination and/or retirement of the member. Tracking the OPPA 2018 CanLII 82193 (ON LA) dealt with the returnlanguage of section 47 of the Police Services Act, 1990, toworkandaccommodationofamemberwhohadthe Comprehensive Ontario Police Services Act, 2019, S.O. demonstrated mental health issues at work and suicidal2019, c. 1, provides as follows:ideations which concerned her colleagues. In addition88(1)Ifamemberofapoliceservicewhoisan to awarding damages against the employer, the arbi- employeeofapoliceservicebecomesmentally trator took the largely unprecedented step of orderingor physically disabled and as a result is incapable of a public interest remedy. This took the form of imposingperforming the essential duties of his or her position, arequirementontheOntarioProvincialPolice(OPP)the boardshall accommodate his or her needsin and the Ontario Provincial Police Association (OPPA) toaccordance with the Human Rights Code.jointly develop an accommodation policy and protocol. The arbitrator also retained jurisdiction in the event of a(2)Thepoliceserviceboardmayterminatethe dispute over the terms of her order: members employment, or retire him or her if entitled 351.TheOPPandtheOPPA,throughtheJointto retire with an unreduced pension, if, after holding EmploymentAccommodationCommittee,istoa hearing in accordance with the regulations, if any, develop a protocol for addressing disability manage- at which the evidence of two legally qualified medical mentconcernsinregardtomentalillness.Thispractitioners is received, the boarddetermines,will include whether a Qualified Support Person or(a) member is mentally or physically disabled andpersons, or an equivalent, should be hired, and theiras a result is incapable of performing the essential role(s). Some mechanism for co-workers and super- duties of the members position; andvisorstoexpresstheirobservationsandconcerns (b)membersneedscannotbeaccommodated must be part of the protocol, and for management to provide a timely response to those concerns. Trainingin accordance with the Human Rights Code without for all staff, is also required as part of protocol, asundue hardship on the board.is keeping records of such training. This protocol isObviously, the ideal outcome is meaningful accommo-to be developed within 120 days of the issuance ofdationandretentionofthememberwhohasdevoted this Award. him/herselftothecommunity.Themoretimethe Theemployersdutytoaccommodateadisabilityworkplace parties devote to prevention strategies, mental does not end until it presents undue hardship to thehealth awareness and treatment, early intervention, robust organization,basedoncostsorhealthandsafetyaccommodationeffortsandco-operation,thebetterfor concerns (to other members or the public). The moreall. Emerging technology may also assist on prevention. permanenttheaccommodation,themorelikelyanApplications such as HealthIM mitigate officer stress when employercanestablishunduehardship.InButtarvdealing with mental health calls by providing instantaneous Halton Regional Police Services Board 2013 HRTO 1578,and current medical and risk information on potentially a new police constable, within the statutory 12-monthdangerousindividuals.Thisknowledgealsoallowsthe probationary period, developed a phobia to an exposureofficer to engage more effectively and empathetically.to bodily fluids. The medical information indicated a high likelihood of relapse when under stress and the member wasnotcompliantwithtreatmentrecommendations.Seann McAleese is a Partner at Miller Thomson LLP and The employer offered conversion to civilian status or ter- regularly advises police employers on labour and mination. The employee agreed to assume a civilian roleemployment matters. Seann can be reached at but later tried to rescind his conversion, seeking varioussmcaleese@millerthomson.com. The Official Publication of the Ontario Association of Chiefs of Police15'