Accommodation in the workplace: Disabilities and human rights

• Lauren
  Chalaturnyk

  Lauren
  Chalaturnyk

  view bio

_{This article was written for and published by the Chartered Professional Accountants of Alberta Fall 2023/Winter 2024 Dividends Magazine}

Mental health, illness, and disabilities exist in all workplaces, and employers must be mindful of their obligations to treat employees equally, regardless of their circumstances.

The Alberta Human Rights Act

All workplaces, regardless of size, are subject to the provisions of the Alberta Human Rights Act. These provisions apply to all stages of the employment relationship, be it advertising or interviewing, hiring or firing. At all times, employers have an obligation not to discriminate against prospective or current employees on the basis of grounds protected by the Alberta Human Rights Act, including, but not limited to: race, religious belief, gender, gender expression, physical disability, mental disability, and sexual orientation.

Discrimination occurs when an employee possesses a characteristic protected by the Alberta Human Rights Act and has experienced an adverse impact with respect to their employment due to that protected characteristic. In certain situations, employers will adopt practices that are technically discriminatory but which are justified on the basis that they have been adopted in good faith to serve a legitimate business purpose. These are referred to as bona fide occupational requirements or BFORs. A classic example of this is requiring that bus drivers have good vision. This is technically discriminatory, but it is necessary to serve the legitimate safety and business purpose of operating a bus.

Discrimination and Accommodation

If an employer disciplines an employee, whose job duties typically include lifting heavy boxes, due to their inability to perform all of their job duties after breaking their wrist, this constitutes discrimination. In that case, rather than punishing or disciplining that employee, an employer is required to accommodate them. Accommodating that employee may involve options such as eliminating that specific job duty for a period of time until their wrist heals or assigning them a different task that they can perform during that period.

Accommodation of employees is a shared responsibility. While the employer will almost always have the primary responsibility for engaging an employee in a conversation about accommodation, the employee is required to make their needs known and supply information that will assist the employer in the accommodation process. Employers often enquire whether they can request medical information when an employee discloses a mental or physical disability, and the answer is typically, yes. However, employers must always respect an employee’s right to privacy, especially regarding their personal health information. That said, employers are not prohibited from requesting doctor’s notes that outline the functional impacts of a physical or mental disability.

Another question frequently raised by employers when dealing with an employee with a physical or mental disability is: to what extent are we obligated to provide these accommodations? The technical answer is that employers must accommodate employees to the point of undue hardship. However, what constitutes undue hardship is fact dependent and must always be assessed on a case-by-case basis. Factors to consider when assessing undue hardship include size of the organization, disruption to operations, safety, adverse effects on morale, disruptions to a collective agreement, and financial cost. Financial cost poses a challenge since many employers may be tempted to assert, “this is just too expensive.” While this is a legitimate concern, in order for financial cost to rise to the level of undue hardship, the accommodation requested must be prohibitively expensive.

Failure to accommodate an employee can result in a human rights complaint by the aggrieved employee, which may result in the employer having to pay damages to the employee, issue an apology, conduct training, or implement or modify existing policies.

Best practices

How can an employer position themselves for success in accommodation? Employers should:

• Define workplace standards in a manner that already takes into account differences between employees;
• Implement a process for accommodation requests;
• Respond to accommodation requests in a timely manner;
• Obtain all relevant information about the employee’s need for accommodation (don’t act on stereotypes, get the facts);
• Investigate alternatives; and
• Recognize that a creative, individualized solution may be necessary.

By implementing these practices, employers will be well-positioned to not only meet their legal obligations but also to treat employees with respect and fairness.

_{This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.}