1. Employment Disability Law
OH, Canada!
Employment Disability Law
Alex Caggiano, Seth Goldstein, Kate Helms, and Carolyn Manka

2. Overview - Defining Disability
- Introduction to Canadian Disability Law
- Applicability to Canada – Cases, Issues, & Holdings
Social Security
Definitions and Comparisons to US and International Law
- Reasonable Accommodation
- Definitions and Comparisons to US and International Law
- Conclusion

3. Defining Disability
Canada’s Human Rights Act: disability is viewed as “any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug” (Article 25).
UN Convention on Rights of Persons with Disabilities: defines disability as “an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others” (Preamble) as well as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others” (Article 1).
United States’ ADA: defines disability as an individual with:
1. A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
2. A record of having such an impairment; or
3. Being regarded as having such an impairment

4. Opportunities Fund for Persons with Disabilities
The program helps disabled people enter the job market, become trained or return to work.
To gain assistance, eligible participants must “self-identify as having a permanent physical or mental disability, be unemployed (or working less than 20 hours/week), legally entitled to work in Canada and in need of assistance to prepare for and keep employment or self-employment”

5. Employment Equity Act
Its purpose is to achieve equality in the workplace, providing “special measures and the accommodation of differences”
Established the Public Service Commission, which has the power to enforce compliance among businesses.
Cases are to be “resolved through persuasion and the negotiation of written undertakings” (Article 22, Section 2).

6. Federal Public Service
The Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service evaluates the Federal Public Service to ensure disabled people’s participation.
Departments and agencies can provide notice about significant issues that arise from the implementation of the policy
Can report to either the Public Service Commission or the Treasury Board Secretariat

7. Canada’s Pension Plan (CPP)
Created “The Reasonably Satisfied Standard for Review for Determining Eligibility and/or Continuing Eligibility for Canada Pension Plan Disability Benefits”
Their standard is deemed by “whether [disability] causes a ‘particular person’ to be incapable regularly of pursuing any substantial gainful occupation”
Effects must be “severe” and “prolonged” (Article 1.2 and 1.3)
Attempts to take into consideration personal characteristics and how that affects the individual
Personal characteristics based on the individual’s age, education and work experience

8. The Saskatchewan Human Rights Code
Article 3 - Objectives
- The objects of this Act are:
- (a) to promote recognition of the inherent dignity and the equal inalienable
rights of all members of the human family; and
- (b) to further public policy in Saskatchewan that every person is free and
equal in dignity and rights and to discourage and eliminate discrimination.
Definition
(d.1) “disability” means:
(i) any degree of physical disability, infirmity, malformation or
disfigurement and, without limiting the generality of the foregoing
Discrimination prohibited in employment:
Article 16 (1) No employer shall refuse to employ or continue to employ or otherwise
discriminate against any person or class of persons with respect to employment, or
any term of employment, on the basis of a prohibited ground.

9. Battlefords and District Co-operative Ltd. v. Gibbs [1996] 3 S. C. R
Facts: Ms. Gibbs is an employee of the Battlefords and District Co-operative Limited. She became disabled in 1987 as a result of a mental disorder and was unable to work.
Issue: Does the appellant’s disability plan, which places limitations on benefits for nervous, mental or emotional disability, but not for other kinds of disability, discriminate on the basis of disability contrary to The Saskatchewan Human Rights Code?
Holdings: Yes
Significance: Mental disabilities should be viewed the same as physical disabilities as defined purpose is to insure employees against the income-related consequences of becoming disabled and unable to work.

10. Granovsky v. Canada [2000] 1 S.C.R. 703
Facts: The appellant claimed to have suffered a back injury following a work-related accident in Prior to his accident, he had made Canada Pension Plan (CPP) contributions in six of the ten previous years. The appellants back condition continued to deteriorate and became permanent in 1993, at which time he applied for a CPP disability pension.  His application was refused.
Issue: Does the Canada Pension Plan discriminate against persons on the basis of physical or mental disability by including periods of physical or mental disability in a claimant’s contributory period?
Holding: No
Significance: Hinders people with temporary disabilities from taking future action

11. Rehabilitation Act 1973 and the ADA: Employment
Addresses discrimination against disabled individuals in the workplace
ADA Title I focuses specifically on issues with employment of disabled individuals

12. Social Security Law in Canada
Do You Qualify as Disabled?
Canada Revenue Agency
Additional Requirements

13. Social Security Law in the United States
Do You Qualify as Disabled?
Disability Determination Services
Additional Requirements
Types of Social Security
Social Security Disability Insurance
Supplemental Security Income

14. International Social Security Legislation
Article 28 of the UN Convention on the Rights and Dignity of Persons with Disabilities
Adequate Standard of Living and Social Protection
Assistance and Equal Access

15. Comparison of Canadian and American Disability Social Security Legislation
Same basic structure:
Must fill out application to qualify for disability benefits
Application reviewed by state agency
Financial aid provided based on other substantial incomes
Canada has less restrictive regulations, easier to receive aid
International law not specific, requires some kind of equality and state support

16. Reasonable Accommodation in Canada Legislation and Definition
Canadian Law provides for ‘reasonable accommodations’ to be made in both the fields of Education and Employment
Restrictions to the allowance Reasonable Accommodation
- Sources: Federal Statutes, Human Rights Statutes, Case Law
Employment Equity Act - para. 5(b) – Employer Obligations
Requires employers to make ‘reasonable accommodations’ to ensure that persons with disabilities are represented in the workplace similar to in society
Canadian Charter of Rights and Freedoms (1982)
– para 15: the duty to make positive efforts to ensure that persons with disabilities share the same benefits that are offered to the general public
Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service (2002)
- applies to employees in public services jobs

17. Restrictions of Reasonable Accommodation: Undue Hardship
Employment
Factors to Consider
Case Law: Eldbridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624
- Reasonable accommodation is only required so long as they pose no ‘undue hardship’ to employers
Education
Who judges whether an Undue Hardship exists?

18. Reasonable Accommodation in the United States History, Legislation, and Definition
History of Reasonable Accommodation
Rehabilitation Act of 1973
Section 504: Reasonable accommodation means an employer is required to take reasonable steps to accommodate an individual with a disability unless it would cause the employer undue hardship.
Each Federal agency has its own section 504 guidelines
Americans with Disabilities Act of 1990
Applicable under all three (3) Titles

19. Restrictions of Reasonable Accommodation: Undue Hardship & Undue Burden
Terms:
- ADA: Title I – Undue Hardship
ADA: Title II - III – Undue Burden
Employment
- Reasonable Accommodation is only required so long as it poses no “undue burden” to employers
Factors to Consider
Enforcement Mechanism: EEOC
Case Law: US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct (2002)
Education
Section 504 and Title II
Denial of Reasonable Accommodation
Who determines if an undue burden or undue hardship exists?

20. Reasonable Accommodation in UN Law Legislation and Definition
UN Convention on the Rights of Persons with Disabilities
Article 2: Definition
Article 24: Education
Article 27: Work and Employment
Signatories
Signed by Canada: March 30, 2007
Signed by United States: July 30, 2009

21. Comparison of National and International Reasonable Accommodation Legislation
Compare and Contrast: Canadian Law v. UN Law
Canadian Law is more developed
Applicability of Reasonable Accommodation
Preventative Measures of Reasonable Accommodation
Enforcement Mechanisms
Canadian Law allows for minimal affirmative action
Compare and Contrast: Canadian Law v. United States Law
Extremely Similar
Longer history of disability law in the US
Preventative Measures: Undue burden and Undue Hardship
Canadian law is more focused on Human Rights aspect

22. International Covenant on Economic, Social and Cultural Rights (ICESCR)
Article six addresses the right to work
State Parties recognize “the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts”
Article nine covers the right to social security (those who cannot work are included)
State Parties “recognize the right of everyone to social security, including social insurance”

23. Conclusion
Canadian Disability Law is more developed than International Disability legislation
Canadian Disability Law is similar to US legislation
Canadian Disability Law is prevalent in both federal statutes and human rights legislation
Canadian Disability Law does not have an overall applicable definition of disability

24. Need Further Proof Why America is Better?
Country
Gold
Silver
Bronze
TOTAL
United States 9 15 13 37
Germany 10 7 30
Canada 14 5 26