DISABILITY IN THE WORKPLACE

OBJECTIVES Introduce the Human Rights Act and the role it plays in employment situations Examine the relationship between disability and employment, from job hunt to leaving a job Review employee and employer rights, responsibilities, and requirements

Race Age Religious Beliefs Place of Origin Colour Marital Status HUMAN RIGHTS ACT OF ALBERTA Passed in 1966; amended many times since “Protected Grounds” include: Source: http://www.albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/sheets/history_and_info/protected_areas_grounds.asp Race Age Religious Beliefs Place of Origin Colour Marital Status Gender Source of Income Physical Disability Family Status Mental Disability* Sexual Orientation Ancestry

Employers cannot publish an advertisement which: JOB POSTINGS Employers cannot publish an advertisement which: Expresses a limitation or preference that demonstrates discrimination on protected grounds Requires applicants to provide information about protected grounds Employers can (and should) publish an advertisement which: Provides information that allows potential applicants to consider their own suitability for a job Details key physical or mental requirements e.g., “Successful candidate will be required to lift loads of up to 5 kg.” e.g., “This job involves frequent exposure to high-stress situations.”

APPLICATIONS/INTERVIEWS Employers cannot: Ask questions which express a limitation or preference that demonstrates discrimination on protected grounds Ask applicants to give information about their mental or physical health, or request a general medical exam* Employers can: Require a job-related medical exam once an offer has been accepted In some cases, ask a question that might seem discriminatory if it provides information the employer needs in order to decide if an applicant would be suitable for the business purposes of a job e.g., an employer seeking to hire a driver can ask questions about an applicant’s ability to see well enough to legally and safely drive

HIRING CHOICE Employers cannot: Employers can: Ask applicants with disabilities to complete tests that demonstrate ability to do the job, unless all applicants are required to complete these tests Employers can: Make a decision to not hire someone on the basis of disability ONLY IF they can prove that disability notably increases the probability of health or safety hazards

TO DISCLOSE OR NOT TO DISCLOSE… It is your choice to disclose or not to disclose to an employer EXCEPT when the disability may increase or cause a safety risk to yourself or others Employers can’t accommodate disabilities they don’t know about Disclosure can be done anytime: during the interview; after being offered the job; when in the job https://alis.alberta.ca/ep/eps/tips/tips.html?EK=7371

ACCOMMODATIONS AT WORK Duty to Accommodate: “… an employer’s obligation to take appropriate steps to eliminate discrimination against potential employees. Discrimination may result from a rule, practice, or barrier that has a negative effect on a person with a need for accommodation based on grounds protected under the AHR Act. […] can begin when a job is first advertised and finish when the employee requiring accommodation leaves the job” Types of accommodations: Source: http://www.albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/bulletins/duty_to_accommodate.asp Purchasing or modifying tools, equipment, or aids, as necessary Using temporary employees Making premises more accessible Altering aspects of the job, such as job duties Offering flexible work schedules Allowing time off for recuperation Offering rehabilitation programs Hiring an assistant Transferring employee to different job Adjusting policies

EXCEPTIONS TO ACCOMMODATIONS Practices or policies that would otherwise be discriminatory can be allowed IF related to a necessary requirement of the job e.g., When hiring bus drivers, can exclude individuals with low vision or blindness Once a standard or requirement has been shown to be discriminatory at first sight, “The Meiorin Test” is used to determine if it is reasonable and justifiable (also known as a “bona fide occupational requirement”) If the required accommodation creates “undue hardship” for the employer, as defined by federal Human Rights legislation

THE MEIORIN TEST REQUIRES THE EMPLOYER TO PROVE: The standard/practice is rationally connected to job performance “What are the job’s objective requirements?” “How does the standard relate?” 2. The standard/practice was adopted in good faith and with the honest belief it was/is necessary for the fulfillment of a legitimate purpose “When and why was it introduced?” “What considerations were made?” 3. The standard/practice is necessary to accomplish the employer’s purpose “Is it impossible to accommodate without undue hardship?” “Is there no less discriminatory way to accomplish the purpose?”

Employers are required to be creative in looking for other solutions UNDUE HARDSHIP Employers can also refuse to accommodate if it would cause “intolerable financial costs or serious disruption to business” e.g., A small business with no elevator could consider it an undue hardship to install an elevator for an employee with a physical disability who, as part of their job, has to carry boxes upstairs Employers are required to be creative in looking for other solutions e.g., In the above situation, the employer would have to look at options such as switching that task to another employee

RIGHTS, RESPONSIBILITIES, AND ROLES IN ACCOMMODATION -- Disclosure Employee Employer Ensure the workplace is free from discrimination and harassment related to protected grounds Ensure accommodation is sought on protected grounds Determine if a request received is based on protected grounds Inform the employer of the need for accommodation Provide the employer information (preferably in writing): - The reason accommodation is needed - Evidence and supporting documentation (medical information explaining functional limitations and needs) - Suggestions of appropriate accommodations - The expected duration of the need Respect the privacy of the person requesting accommodation Listen to the needs and suggestions of the person seeking accommodation Review information and documentation provided

RIGHTS, RESPONSIBILITIES, AND ROLES IN ACCOMMODATION- Employer Response Employee Employer Allow reasonable time for a response Reply to the request within a reasonable time period Listen to and consider the options provided. Accept reasonable accommodation, even if not the preferred option Be willing to take substantial and meaningful measures to accommodate needs Discuss options with the employee If unsure a proposed option is reasonable, consult with an expert (e.g., HR consultant, lawyer, union rep) Consult with experts to get more information and learn more Be flexible and creative in finding options for accommodation Take reasonable steps to accommodate up to the point of undue hardship

RIGHTS, RESPONSIBILITIES, AND ROLES IN ACCOMMODATION -- Finalizing Employee Employer If the employer is claiming undue hardship, request details of costs or other factors causing the hardship If full accommodation would be undue hardship, suggest options that partially accommodate needs Make a formal written agreement with the employer about the accommodation Make a formal written agreement with the employee about the accommodation Cooperate to make the accommodation work! Follow up to ensure the accommodation meets the needs of the employee Advise the employer about any changes, and provide related documentation Review and modify the agreement if circumstances or needs change Be willing to review and modify the agreement if circumstances or needs change or if it is no longer working Tell the employer if accommodation is no longer needed

MEDICAL LEAVE DOCUMENTATION Employee responsibility: Report absences as early as possible Provide documentation when required by a collective agreement Employers can: Ask for medical information that confirms the employee is absent for medical reasons and provides an approximate return date This information must be treated as confidential and protected as such Employers cannot: Request information that is NOT related to work and to the specific period of absence Require a diagnosis (except in very limited circumstances) Violate a collective agreement that is in place

MEDICAL ABSENCE AS A REASON FOR DISCIPLINE OR TERMINATION Employers must follow Duty to Accommodate in regards to absences related to disabilities (permanent or temporary) Find out necessary information Work with employee to find solutions and accommodations

TERMINATION / SEVERENCE Employers cannot: Terminate an employee based on a protected ground without reasonable and justifiable reason Employers can: Terminate employment based on disability only when: There are reasonable and justifiable grounds based on a bona fide occupational requirement; and Every reasonable attempt at accommodation has been made and further accommodation is not possible without undue hardship

ALBERTA HUMAN RIGHTS COMMISSION Provides free, confidential information in regards to human rights (including if you believe you have been discriminated against) www.albertahumanrights.ab.ca Confidential inquiry line (can find online) 780-427-7661 TTY: 780-427-1597 (toll free 1-800-232-7215) Complaints to the commission must be made within one (1) year after the incident of discrimination