Posts Tagged ‘Disability’

Kluft zwischen Rollstuhlfahrer und anderen

Employees within Ontario have the right to be treated equally in employment, without discrimination, on the basis of a number of grounds which are set out in section 5 of the Ontario Human Rights:

• Race;
• Ancestry;
• Place of origin;
• Colour;
• Ethnic origin;
• Citizenship;
• Creed;
• Sexual orientation;
• Gender Identity;
• Gender expression;
• Age;
• Record of offences;
• Marital Status;
• Family Status, and
• Disability.

This article deals specifically with the ground of disability. The duty to accommodate is triggered for employers when the employer knows or ought reasonably to know that the employee had a disability.

It is discriminatory to use the application process to screen prospective employees on the basis of disability. In this respect, employers are not permitted to ask questions that reveal information about a Code ground. For example, an employer cannot ask a prospective employee if he or she has a driver’s license if a driver’s license is not an essential element of the job description. Even where a driver’s license is an essential element of the job description for which the employee is interviewing, the employer cannot ask to view the driver’s license or photocopy it. To do so would give the employer information about the employee’s age for example, a protected Code ground. Instead employers should include a statement on the application that a driver’s license is required for an essential element of the position and successful applicants will need to prove they possess a driver’s license.

Upon learning that an employee has a disability, employers have a duty to accommodate short of undue hardship. The duty to accommodate is a two-way street. Employees have an obligation to provide employers with information necessary to determine appropriate accommodation. In some cases, employees will provide their employer with a medical note stating a generic line such as “For medical reasons, Joe can no longer perform his duties as labourer and should instead be moved to the position of reception for a period of two months”. The Tribunal has stated on a number of previous occasions that generic statements are insufficient. It is not the role of a doctor to identify the specific job an employee can perform. Rather, the doctor’s role is to identify the patient’s physical or mental restrictions or the specific disability related accommodated required. The employer should use that information to determine whether and how it can accommodate the individual in the specific workplace in question. The obligation is on the employer to accommodate to the point of undue hardship. When the employer receives a generic medical note, they may request additional information from the employee. Determining the appropriate questions however is the challenge.

The Human Rights Tribunal of Ontario (“HRTO”) has made it clear that employees are expected to waive some privacy in order to open an accommodation dialogue. Generally, employers do not have the right to ask what the diagnosis is, but rather may seek information about the employee’s functional limitations in order to determine how those limitations can be accommodated in the specific workplace. In 2009, the HRTO clarified the information employers are entitled to, stating:

For the purposes of a request for employment accommodation, generally the focus should be on the functional limitations of the employee’s condition (capacities and symptoms) and how those functional aspects interact with the workplace duties and environment. Consequently, an employer need not be informed of the specific cause of the employee’s condition or the exact diagnosis in order to be put on notice that an employee has disability-related needs requiring accommodation…

In order to trigger a duty to accommodation, it is sufficient that an employer be informed of the employee’s disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation…

The Tribunal has found that employees have failed to establish a prima facie case of discrimination in cases where employees fail to provide necessary information to employers. There is often a fine line between inappropriate and appropriate requests for medical information. Be safe and consult a lawyer practicing in human rights law prior to refusing to provide medical information.

Arrow moves through the walls of labyrinth

When an employer becomes aware, or ought reasonably to become aware, that an employee suffers from a disability requiring accommodation, the duty to accommodate is triggered. The duty to accommodate is a collaborative process, wherein the employee has obligations to provide as much information as is possible to assist the employer in its attempt to accommodate the employee’s needs. The employee does not necessarily have to disclose his or her diagnosis (for a more detailed discussion of information employers are entitled to in the accommodation process see my blog entitled What Questions Can an Employer Ask an Employee with a Disability?).

The duty to accommodate has two parts: (1) a procedural component, and (2) a substantive component. This article will discuss in detail the various components of the duty to accommodate and highlight a recent decision that will be of interest to employers when determining appropriate accommodation.

The Procedural Component

The procedural component requires employers to assess the individual needs of a specific employee and offer consideration of possible methods of accommodation.

The Substantive Component

The substantive component requires consideration of the reasonableness of the accommodation provided or the rationale for failing to provide appropriate accommodation.

Chen v. Ingenierie Electro-Optique Exfo Inc.[i]

In Chen v. Ingenierie Electro-Optique Exfo Inc., a 2009 decision of the Human Rights Tribunal of Ontario, the Applicant worked as a shipper-receiver for the Respondent employer. The applicant began to experience back pain in the workplace, however did not tell his supervisor. The Applicant went on vacation to China where he was diagnosed with sciatica.

The Applicant saw a Canadian physician and provided a subsequent report indicating that he suffered from sciatic. Upon receipt of eth information the employer arranged a meeting with management, human resources, and the Applicant to discuss accommodating the Applicant’s functional limitations.  Following the meeting the applicant was told to return home for two days and report back after that period (he was paid for those days and permitted to take them as sick time).

The following day after the meeting, human resources met with the plant managers to determine whether any department had positions available that could accommodate a worker with modified duties. Ultimately the employer concluded there were no positions available to accommodate the Applicant and five days later his employment was terminated.

The Tribunal accepted that there may not have been any positions in which to accommodate the Applicant however stated that the employer failed to satisfy the procedural component of the duty to accommodate for the following reasons:

  • The period of time from the date the employer learned of the Applicant’s functional limitations until the date of his termination – a mere 2 days – was insufficient;
  • The employer failed to request a functional abilities form to actually determine what the Applicant was able to physically do, and
  • The employer failed to discuss accommodation options with the Applicant.

The Tribunal ruled that an employer has a duty to make meaningful inquiries into an employee’s needs. The employer in this case was required to obtain more information about the Applicant’s limitations and spend more time assessing whether he could be accommodate. As a result of the failure to accommodate the employer was ordered to pay the Applicant fifteen weeks’ lost wages and $5,000.00 as general damages for the pain, humiliation and loss of dignity the Applicant experienced.

Conclusion

The duty to accommodate requires more than “going through the motions”. Employers should ascertain the specific limitations and abilities of their employee, and then engage in a meaningful process to determine whether accommodation is possible. The assessment should not be merely a day or two, but rather an ongoing process wherein the employer maintains communication with the employee throughout the process.

END NOTES


[i] Chen v. Ingenierie Electro-Optique Exfo Inc., 2009 HRTO 1641