Visions Journal

Laura Track, LLB, JD

Reprinted from the "Workplace: Disclosure and Accommodations" issue of Visions Journal, 2018, 13 (4), p. 33

Under Canadian human rights law, employers have an obligation to adjust workplace rules, policies and practices that have a negative impact on employees or job applicants with disabilities. In other words, employers have a duty to accommodate disability in the workplace.

An employer’s failure to accommodate an employee or job applicant’s disability may result in a claim of discrimination under BC’s Human Rights Code.

A disability can be a physical disability or a mental disability. The legal definition of “disability” also includes substance use disorders. “Disability” in human rights law indicates a state that is involuntary and has a degree of severity, persistence or permanence. Generally, the disability impairs a person’s ability to carry out the normal functions of life to some degree, and poses an impediment to a person’s participation in the workforce and other areas of life. So, for example, a bout of the flu would not be considered a disability under the Human Rights Code because it is temporary and does not create the kind of impediment to employment that the Code is designed to address.

Not all disabilities are visible. Disabilities that are episodic in nature—mental illnesses and substance use disorders, for example—may be hidden from view. Stigma and fear of discrimination may keep people from disclosing their disabilities if they are not already visible. But this may prevent someone from getting the support and assistance they need or accessing accommodations that may be available to them at work.

It can be challenging for employers to navigate situations involving employees with invisible disabilities, including addiction issues. Sometimes it can feel as if the employer’s duty to inquire, the requirement to ensure employee privacy and the need to develop appropriate accommodations for disabled employees all compete with each other for the employer’s care and attention. While every situation must be assessed on a case-by-case basis, employers can foster a culture of respect and inclusion by thinking proactively and building accommodations into the way they do business.

The duty to inquire

It’s usually up to employees to bring their need for accommodation to the attention of their employer. But if an employer has reason to suspect that an employee may have a medical condition that is affecting the employee’s work, then taking disciplinary measures without first making inquiries about the employee’s health may constitute discrimination.

Sometimes circumstances give rise to a duty to inquire whether an employee has a disability. Warning signs of a possible mental disability could include a sudden and dramatic change in the employee’s behaviour or performance, an increase in the employee’s sick leave or statements by the employee indicating that they feel overwhelmed or unable to cope. In the case of substance use, there may be personality changes or erratic behaviour, signs of impairment at work or consistent lateness or absenteeism.¹

While it’s important not to jump to conclusions prematurely, when employers observe behaviour that could indicate a disability, they have a legal obligation to begin a discussion with the employee and determine if there is any need for accommodation.

Maintaining employee privacy

Talking about mental health and addiction challenges can be extremely difficult for people who are suffering. In the case of substance misuse, it’s important to remember that the person may be in denial about the fact that they have a problem. It’s essential that employers keep their conversations with the employee confidential and reassure the employee that privacy will be maintained. The employer should always take a respectful, compassionate and non-judgemental approach, and inform the employee about workplace accommodation policies and any available workplace support.

In some cases, an employer may need information from a medical practitioner in order to understand the nature of the employee’s disability, its impact on their ability to do their job and the accommodations the employee may need. Employers should be as minimally intrusive as possible when requesting medical information. From a privacy standpoint, it is better to ask for a little medical information from the practitioner at the outset, and then request more if it is needed, than to collect more information than necessary. The employer only needs information relevant to the work situation and the accommodations the employee requires. In most situations, the employer does not need information about the employee’s specific diagnosis, their medical history or the details of the treatment they are receiving.

But it is not always necessary for employers to gather medical information in order to make decisions about accommodating an employee who seems to be struggling with a disability at work. In a recent decision, the BC Human Rights Tribunal noted that “medical evidence is not the only basis upon which a mental disability [under the Human Rights Code] can be proved.”² In another recent case, the Supreme Court of Canada found that the heightened requirement for medical “proof” of mental disability is often founded upon stigmatizing and dubious perceptions of mental illness: that it is “subjective” or otherwise easily feigned or exaggerated.³ Generally, employers should not feel they have to wait for medical evidence of a disability before they start to consider potential accommodation options.

Providing effective accommodations

The goal of an accommodation plan is to ensure that an employee who is capable of working is supported to do so. The employer’s aim should be to keep the employee at work where appropriate, or to facilitate the employee’s return to work as soon as possible.

The Supreme Court of Canada has said that an employer has a duty to accommodate a disabled employee to the point of “undue hardship.”⁴ It is expected that the employer may have to incur some hardship—for example, by modifying the workplace or incurring some expense—in order to provide a reasonable accommodation to a disabled employee.

Reasonable accommodations for an employee with a physical disability might include modification of the nature of the tasks they’re required to do, changes to their physical environment or workspace or time off to recover from an injury. Reasonable accommodations for an employee with a mental disability or substance use disorder might include schedule changes that enable the employee to attend treatment or therapy, adjustments in the employee’s job description or performance requirements, reassignment of the employee to another position (to a non-safety-sensitive role, for example, or away from a workplace situation that is a source of stress) or the provision of short- or long-term leave to allow for the employee’s treatment and recovery.

Undue hardship can arise for an employer when an employee is incapable of performing their job for a prolonged and indefinite period of time due to their disability. If the employer has made reasonable adaptations but the employee is still unable to fulfill their basic employment obligations for the foreseeable future, the employer will likely have met the duty to accommodate.

In my experience, accommodating disabilities effectively requires creativity, flexibility and a commitment on the part of employers to understanding the employee’s disabilities, free of assumptions and generalizations.⁵ The main barrier to effective accommodation of disabilities is often the employer’s unwillingness or inability to devote the time, energy and creativity necessary to find appropriate accommodations.⁶

I have seen an employer resist an accommodation as simple as a tall chair that would allow a customer service representative with chronic back pain to sit down from time to time. On the other hand, I have also seen an employer enthusiastically invest in screen magnifiers and text-to-speech programs that allowed a visually impaired employee to do their computer work. As a result, the entire workplace benefited from this employee’s contribution to the workplace.

Finally, the employee should be included in the design of any workplace accommodation. Employees have an obligation to participate in the search for a meaningful accommodation of their disability, and to accept a reasonable plan, even if it is not their idea of the “perfect” resolution. Employees with disabilities will have critical insights into their own needs, capacities, strengths and challenges. When an employee experiences the accommodation process as responsive, empowering and supportive, the employee’s performance—and the entire workplace—is likely to benefit.