Tap Into EmployAbility Conference October 3, 2003 Mark H. Mason

Tap Into EmployAbility Overview Legal Issues Practical Issues

Tap Into EmployAbility Human Rights Code Provides protection to enumerated groups of persons in employment to eliminate discrimination and harassment

Tap Into EmployAbility Social Standards of the HRC 1.Service 2.Employment all aspects including pre-employment 3.Protected Grounds disability (handicap or perceived handicap) is one of 14 grounds

Tap Into EmployAbility Social Standards of the HRC 4.Exceptions: a) BFOR: impression is not enough statistics and scientific evidence b)Accommodation: you must try and try again! c)Undue Hardship: high standard

Tap Into EmployAbility Duty to Accommodate – s. 17(2) “… shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship … considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”

Tap Into EmployAbility Accommodation Principles Process of assessing accommodation is important Possibilities may include: Own job with modification Other available job

Tap Into EmployAbility Some Limits on the Duty to Accommodate Accommodate the handicap, not the inability No obligation to create an unproductive job Displacement of other employees

Tap Into EmployAbility Common Fears High cost of accommodation Lack of employee productivity Rising Insurance Rates Increased risk of accidents

Tap Into EmployAbility Barriers to Employment a)Physical barriers: building structure communications b)Attitudinal barriers: beliefs and assumptions c)Systemic barriers: hard to identify

Tap Into EmployAbility Hiring Considerations Swim in the deep end of the pool as well Give all applicants an equal opportunity to apply Re-think your regular recruiting activities Encourage applications

Tap Into EmployAbility Selection of Candidates Ability to perform the essential duties of the job Ask each candidate the same questions Ensure testing measures the skills and abilities needed in the workplace

Tap Into EmployAbility Selection of Candidates Accommodation during the application process: a)application form b)format of testing materials

Tap Into EmployAbility Once a Candidate is Selected Employers right to expect essential duties of the job to be performed Accommodation starts with the employee

Tap Into EmployAbility Request for Accommodation Relax and breath! Treat the matter seriously Assess the employee’s needs and try to accommodate those needs Individualized process Undue hardship

Tap Into EmployAbility Undue Hardship Costs – must be quantifiable Health and safety requirements Is the standard now “impossibility”? Unacceptable undue hardship arguments

Tap Into EmployAbility Performance Management What is the standard of performance which may be expected?

Tap Into EmployAbility Performance Management Entitled to hold all workers to the same standard of performance Entitled to evaluate all employees using the same performance criteria Qualifier – subject only to required accommodations

Tap Into EmployAbility Performance Management What can you discipline and/or terminate an employee for if that person has a disability? Anything for which you would otherwise discipline and/or terminate an employee who does not have a disability subject to accommodation

Tap Into EmployAbility Performance Management Ensure the following: a)The decision is not based on the disability b)Discipline/termination is applied consistently c)Discipline/termination is in accordance with policies

Tap Into EmployAbility Conference October 3, 2003 Mark H. Mason