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Disability and the Duty to Accommodate – What Employers Need to Know


Blind person using computer with braille computer display

A commentary by Wendy Ferguson

I recently ventured out to a new and trendy Calgary restaurant where the dining experience deliberately overshadows the food.  Guests are hosted to a ‘blind dining’ concept, where they are escorted to their tables through the pitch-dark dining room where patrons drink, eat and converse in complete darkness.  Definitely an edgy concept, but what really intrigued me was that this company employs only blind and visually impaired servers, thus the tables are turned and it is here where the non-sighted guide the sighted!

This unique business concept inspired me to do a bit of research on disabilities in relation to employment statistics in our province and nation.   When it comes to visual impairment, 60,000 Albertans are afflicted with visual impairment or blindness.  It is estimated that 72% of visually impaired or blind Canadians are unemployed or underemployed.  The Canadian National Institute for the Blind (CNIB) stresses that committing to simple workplace accommodations and adopting advanced technology can easily allow someone who is blind or partially sighted to excel in a wide range of careers.

Of course, visual impairment is only one disability that lessens opportunities for individuals seeking employment opportunities.   A significant portion of Albertans have disabilities…around 11% live with a disability, ranging from mild to severe.

The latest report by Statistics Canada (2017) indicates that 20% of Canadians over the age of 15 have one or more disability that limits them in their daily activities.  Tragically, working-age adults with disabilities experience 40% unemployment and those with very severe disabilities face about 70% unemployment.   Keep in mind that among those with disabilities aged 25 to 64 years who were not employed and not currently in school, two in five (39%) provided evidence of work potential—this translated into over 600,000 persons with disabilities who were not working, but had the potential to.

The Duty to Accommodate in Alberta – Alberta Human Rights Commission

For the purposes of disability and employment, the Alberta Human Rights Act (AHR Act) recognizes that all people are equal in dignity, rights and responsibilities, regardless of physical disability or mental disability.   Employers must accommodate existing employees and potential employees, meaning you must make changes to certain rules, standards, policies, workplace cultures and physical environments to ensure that they don’t negatively impact a person because of mental or physical disability.  The goal of accommodation is to enable equitable participation in employment practices and job opportunities.  Certainly, it may cause a degree of inconvenience, disruption and expense to an employer, however accommodation to the point of undue hardship is required by law.  Although the legal duty to accommodate a person’s needs based on disability is well established in federal and provincial law, even today 60% of human rights complaints in Canada relate to discrimination based on disability.

Disability Defined

The AHR Act defines physical disability as “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness.”  Note – this includes alcoholism, and drug dependency.

Mental disabilities are defined by the AHR Act as “any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder.”  Some examples of mental disability include: dyslexia, depression, schizophrenia, obsessive compulsive disorder and panic attacks.

Consequences of Failing to Accommodate

If an employer fails to provide accommodation to the point of undue hardship, then the employer may be in breach of the AHR Act, and the person seeking accommodation may file a complaint with the Human Rights and Citizenship Commission.  Remedies are determined based on assessing the losses that the complainant has actually experienced.  If a complainant has lost her/his job because of their disability, remedies may include:  a written apology to the complainant; a job reference for the complainant; an agreement or order that the respondent stop the behavior and take steps to ensure that the behavior will not happen again; reinstatement of the complainant to their former job; financial compensation to the complainant for lost income and benefits; general monetary damages for injury to dignity and self-respect; participation by the respondent in a human rights education program; and/or development and implementation of an anti-discrimination policy in the workplace.

Accommodation Considerations

Some examples of accommodation may include time off for extended illness; use of a service dog for a person with visual impairment; and use of a wheelchair for a person with mobility problems.  Accommodation can also include altering equipment, workplaces or policies, such as:

  • purchasing or modifying tools, equipment or aids, as necessary
  • altering the premises to make them accessible
  • altering aspects of the job, such as job duties
  • offering flexible work schedules
  • offering rehabilitation programs
  • allowing time off for recuperation
  • transferring employees to different jobs
  • hiring an assistant
  • using temporary employees
  • adjusting policies (i.e. relaxing the requirement to wear a uniform)
  • larger employers may be required to look for reasonable accommodations in other departments or locations

Of course, both parties have rights and responsibilities in the accommodation process.

Are There Exceptions?

Yes…the law recognizes that, in certain circumstances, a limitation on individual rights may be reasonable and justifiable, which is called a bona fide occupational requirement.  Discrimination or exclusion may be allowed if an employer can show that a discriminatory standard, policy or rule is a necessary requirement of a job. For example, in order to perform their jobs safely, people employed as drivers require acceptable vision and an appropriate driver’s license.  Thus, a legally blind person would be legitimately excluded from a position as a driver since it is a bona fide occupational requirement to be able to see and to obtain a driver’s license.

Take the Meiorin Test to help determine if particular occupational requirements are reasonable and justifiable in your business.  This test requires employers to consider the abilities of different members of society before adopting a bona fide occupational requirement.

What is the Accessible Canada Act?

Just this month Bill C-81 received royal assent, setting into play the Accessible Canada Act for persons with disabilities.  This Act is meant to create a barrier-free Canada, helping to provide greater opportunities for persons with disabilities.  It specifically targets barriers in employment opportunities for disabled persons.  However, it is limited in that it only covers those employers who fall under federal jurisdiction, not the private sector.  It has been suggested that this Act will lead the way for the respective provinces to adopt more strict regulation on accommodating the disabled, but for now we rely on our AHR legislation.

Employment has vital implications for the economic security and wellbeing of all individuals and their families.  It provides inclusion in society, allowing individuals a sense of fulfillment and purpose. Yet, research consistently indicates that persons with disabilities are less likely to be employed than those without disabilities.  As an employer, it is imperative that you understand your duty to accommodate.  I challenge all organizations to consider their diversity strategy.  Perhaps it’s time to make a cultural shift… maybe give someone a chance that you may have not considered in the past?

Important links for more information:

Consider hiring someone with sight loss and tips for fair recruiting:

https://cnib.ca/en/sight-loss-info/blindness-at-work/hiring-someone-sight-loss?region=ab

Accommodating employees with sight loss:

https://cnib.ca/en/sight-loss-info/blindness-at-work/workplace-accommodations?region=ab

Alberta Human Rights – Duty to Accommodate Bulletin as well as the Meiorin Test: https://www.albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/bulletins/Pages/duty_to_accommodate.aspx

Finding Work as a Person with Disabilities in Alberta

https://alis.alberta.ca/look-for-work/additional-resources-for-specific-audiences/for-persons-with-disabilities/finding-work-as-a-person-with-disabilities/

Find jobs from Canada’s Best Diversity Employers:

https://www.canadastop100.com/diversity/

 

Wendy Ferguson is a Human Resources Professional and owner of Stick People Solutions (SPS), providing simple, flexible and effective solutions for complex people issues.  SPS specializes in employment legislation, policy, workplace investigations and recruiting.  Please follow Wendy Ferguson on LinkedIn for future articles about HR in Alberta.

Email: info@stickpeoplesolutions.com

Web: www.stickpeoplesolutions.com



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