As far as reasonable accommodation is concerned, one hears about religion far more often than disabilities. And yet, a certain number of obligations apply to Canadian companies when an employee has a medical restriction. Human resources professionals, here’s what you should know to find balanced solutions in accommodation files.
- What is a disability?
It is a physical or psychological anomaly, symptomatic or not, and which leads to functional limitations in one’s professional duties. A simple definition, but that is broad in scope. Hearing disorders, respiratory problems, musculoskeletal disease, insomnia, migraine, psychiatric problems, even alcoholism or drug addiction. . . Many “anomalies” can be considered a disability. Nevertheless, 90% of accommodation requests are linked to psychological disorders.
- Discriminatory or not?
All the provinces have a charter of rights and freedoms to fight discrimination. Workers are discriminated against as soon as they are they are excluded, treated preferentially or differently based on their disability, right from the pre-employment stage. Example: A nurse with eczema is not hired, for the reason that her disease could affect her work and increase the hospital’s disability insurance costs. Note that discrimination is not at issue if the same nurse is not hired because she does not have the required professional skills. In all cases, the burden of proving the discrimination is on the worker.
- The accommodation obligation…
. . . is a legal creation dating to 1985 (Ontario Human Rights Commission vs Simpsons-Sears). Accommodating disabled workers involves arranging their job (or finding them a new one) in order to observe their medical restrictions, based on the company’s means, of course. “The most frequent accommodation is the gradual return to work, followed by adaptation and a lighter work schedule,” says Marie-Josée Sigouin, a lawyer with Quebec-based law firm Le Corre and Associates. The obligation to accommodate a disabled employee is an obligation of means, and not of results. It is the real efforts of companies that are judged above all. It is therefore crucial to properly document all the procedures you undertake.
- “Unreasonable” accommodations?
Generally speaking, employers are not required to accommodate people who are deemed totally unfit for work, or to create tailored jobs. In addition, some measures may be recognized as excessive by the courts, such as purchasing $20,000 equipment, stopping the assembly line every 15 minutes, and harming the rights of other employees. “The accommodation obligation is not an absolute right, in that it must not infringe upon the rights of employers to run their companies as they see fit,” explains Marie-Josée Sigouin. Each situation must be treated on a case-by-case basis. The courts clearly take the size of the company into account before ruling on the “excessiveness” of a request.
- Dialogue
In most cases, the courts invite the different parties to sit down together and try to find mutually acceptable solutions. It is therefore better to buy time by cooperating. . . To better integrate workers with medical restrictions, get out of your office and start a constructive dialogue. Employers are required to actively seek solutions and to consider all possible alternatives to accommodate their workers. Employees, for their part, should not stand passively by. They should assist in the search for accommodation by making specific proposals, and possibly by agreeing to the employer’s request for a second medical opinion. Co-workers and managers have a role to play also, by being open-minded!