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Living with HIV Know Your Rights Accommodation in the workplace The information contained in this publication is information about the law, but it is not legal advice. For legal advice, please contact a lawyer in your region. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 2
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca This presentation complements the brochure Living with HIV: Know your Rights #2 Accommodation in the workplace. Copies of the brochure are available at www.aidslaw.ca.www.aidslaw.ca The information contained in this presentation is information about the law, but it is not legal advice. For legal advice, please contact a lawyer in your region. The information contained in this presentation is current as of 2013. Funding for the Living with HIV: Know your Rights series was provided by the Public Health Agency of Canada. The opinions expressed in this presentation are those of the authors/researchers and do not necessarily reflect the official views of the Public Health Agency of Canada. Introduction
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca The Canadian Human Rights Commission has affirmed in its Policy on HIV/AIDS (2010): “As a result of new drugs and forms of intervention, people with HIV infection are now able to continue productive lives for many years. If individuals with the requisite workplace accommodation are able to continue to work they should be allowed to do so. Any decision made by an organization relying on health and safety considerations to exclude a person must be based on an individual assessment supported by authoritative and up-to-date medical and scientific information.” Introduction
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 1. What rights do I have to accommodation within the workplace? To accommodate an employee means to remove barriers so that he or she is able to do the essential duties of the job. You have a right to work free from discrimination as long as your health allows you to perform the essential duties of your job after accommodation has been provided. Human rights laws in Canada require an employer to provide “reasonable accommodation” to an employee with a disability. Every employer has a legal duty to accommodate you, short of “undue hardship.”
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 2. What are some possible ways to accommodate an employee with HIV in the workplace? 1. Do I have to tell my employer that I have HIV? HIV is an episodic disability — people living with HIV have periods of good health and periods of illness. Accommodation will always vary according to a person’s unique needs, and those needs may change over time. Examples of reasonable accommodation include: installing a ramp job modifications or assignment to less demanding duties modifications to equipment or provision of assistive devices flexible work schedule additional time off to attend medical appointments alternative break schedules job sharing
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 3. Can my employer require me to disclose my HIV or other medical diagnosis if I request accommodation at work? 1. Do I have to tell my employer that I have HIV? You do not need to disclose your specific medical condition(s) to obtain accommodation. You should provide relevant and appropriate information, explaining the disability-related limitations and requirements you have in order to fulfil the essential duties of your job. When considering a request for accommodation, your employer is entitled to ask for independent medical information confirming that you have a disability and describing the limitations it places on your ability to do your job. Accommodation will always vary according to a person’s unique needs, and those needs may change over time.
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 4. How should I make a request for accommodation? 1. Do I have to tell my employer that I have HIV? In order to request accommodation in the workplace, you need to disclose to your employer that you have a disability and inform him or her of your needs and relevant restrictions or limitations. If you need accommodation to continue working or to return to work, you have a duty to cooperate with your employer and to facilitate and accept reasonable accommodation. Cooperating might include: cooperating to obtain necessary information (e.g., expert opinions) discussing possible solutions helping to develop an accommodation plan working with the employer on an ongoing basis to manage and monitor the accommodation process.
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 5. What does my employer have to do if I request some accommodation? 1. Do I have to tell my employer that I have HIV? Your employer should respect your privacy and request only the information that is required to determine how to reasonably accommodate your needs. The employer should separate the essential duties of the job from the non- essential duties of the job. Only the essential duties should be considered in determining what accommodation is necessary. Your employer cannot refuse to accommodate you without a legitimate reason. If the employer claims that the accommodation you require poses undue hardship, the employer is required to prove that this hardship is real, measurable and significant.
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 6. If I belong to a trade union, can it help me with my request for accommodation? 1. Do I have to tell my employer that I have HIV? Collective agreements include the protections against discrimination set out in the applicable human rights code, including the employer’s duty to provide reasonable accommodation for employees with disabilities. Your union can help you by supporting your request for accommodation in order to work. The union also has a duty not to discriminate and to agree to reasonable measures by the employer to accommodate an employee with a disability, unless it would impose undue hardship on the union and its members.
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 7. When could my request for accommodation create “undue hardship” for my employer? 1. Do I have to tell my employer that I have HIV? Your employer is required to accommodate a request for accommodation unless it would create “undue hardship” for the employer. Each situation should be assessed individually and according to the criteria for the relevant jurisdiction. Criteria for assessing undue hardship vary between the federal and provincial laws, and between provinces and territories. Some factors commonly considered include: cost the nature and size of the employer the degree to which the accommodation measures would interfere with the operation of the employer’s business the health and safety of the employee, co-workers and the public the impact on other employees any disruption of the collective agreement
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 8. What can I do if I think I have been unfairly treated by being denied accommodation? 1. Do I have to tell my employer that I have HIV? You may pursue a complaint under the applicable human rights statute, whether federal or provincial/territorial You may initiate legal proceedings before a court alleging a breach of your constitutional right to equality under the Canadian Charter of Rights and Freedoms. For unionized employees, the union may file a grievance on the employee’s behalf alleging a breach of the collective agreement. For more information, see Remedies for discrimination and privacy violations in the workplace in this series.
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 1.I have recently been diagnosed with HIV and am experiencing a lot of side effects from the medications I am taking. I do not want to stop working — I love my job and I feel that I need to remain as active and engaged as possible. I am however finding it difficult to be on time for work in the morning and to focus for long periods of time. What can I do? 2.I requested that my employer install a ramp at the back entrance to the business because I am having a hard time getting up and down the steep stairs. My employer wants to know why I can no longer handle the stairs and says it is unreasonable for me to expect “special treatment”. I do not want to tell my employer the details of my condition because it is a small shop and I am afraid everyone will find out in no time. What should I tell my employer? Scenarios
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca Under Canadian human rights law, all persons capable of performing the essential duties or requirements of a job or services are entitled to be treated equally. Living with HIV should pose no barriers for the vast majority of jobs — other than the barriers sometimes created by misinformation, stereotypes and prejudice. Conclusions Accommodation will vary according to a person’s unique needs, which must be considered, assessed and accommodated on an individual basis.
© Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca Thank You! Canadian HIV/AIDS Legal Network http://www.aidslaw.ca Phone : +1 416 595-1666 Email: firstname.lastname@example.org
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