How can employers ensure their compliance with the law when it comes to accommodating employees with disabilities? Are “invisible disabilities” such as mental health conditions taken seriously enough by employers?
To find out more, we spoke to Michael Lynk, an Associate Professor at the Faculty of Law, Western University, in London, Ontario.
First, it’s important to note that across Canada, laws provide for equal rights and opportunities, and freedom from discrimination. A provision of the Ontario Human Rights Code, R.S.O. 1990, c. H-19, in particular, states that employers have a duty to accommodate the needs of people with disabilities to the point of undue hardship, to ensure they have equal opportunities, equal access, and can enjoy equal benefits.
Many organizations offer resources to assist companies with tapping into a vibrant and underused labour pool of people with disabilities. For example, the Conference Board of Canada has made this toolkit available on its site, stating that the information package “provides practical advice to employers of all sizes about simple changes they can implement to make their workplaces more inclusive for people with disabilities and suggestions on complying with the Employment Standard as set out under the Accessibility for Ontarians with Disabilities Act.”
Joe Dale, executive director of the Ontario Disability Employment Network, told reporters in 2017 that many businesses still believe that accommodating employees is an expensive and cumbersome process.
"Businesses tend to equate disability with injury or workplace accident and feel that it's going to be either bothersome, time-consuming or costly to bring people with disabilities into the workforce," he said.
In an interview, Lynk told Blue J Legal that it’s imperative that employers follow the law under which they operate “to make every reasonable effort to accommodate employees with disabilities. They should also ensure their HR managers are up-to-date with what is required to accommodate those with disabilities.”
Lynk also advises businesses to “have access to good labour lawyers because they are well-versed in human rights laws.”
What about disabilities that are less visible than others, such as those with mental health challenges? Lynk has noticed in the past 10 years a “huge rise in the number of cases where employers failed to accommodate those with mental health disabilities, such as addictions, and that means it requires more from employers to ascertain if a disability is at play in those cases.”
The Canadian Human Rights Tribunal faced such a case in July 2018, when Transport Canada was ordered to give a Victoria man a job with top-secret security clearance—and compensation as high as $500,000—after he faced discrimination due to depression.
Lynk adds that a problematic area for employers is the hiring stage. “Employers have to keep in mind questions they can’t ask prospective employees. And sure, an airline isn’t going to hire someone with poor eyesight for a pilot's position if their eyesight could not be corrected. But what if another firm doesn’t hire someone due to them having ADHD or autism? Human rights commissions are vigilant to ensure employers aren’t making decisions based on stereotypes.”
In order to assist employers dealing with the issue of accommodation, Blue J Legal recently launched Blue J HR. The tool is part of a suite of products designed to assist HR professionals in confidently resolving contentious issues.
The Duty to Accommodate Classifier determines whether an employer has fulfilled its duty to accommodate an employee’s disability pursuant to the applicable federal, provincial, or territorial human rights legislation. It scans hundreds of duty to accommodate cases across all jurisdictions, taking into account court decisions and tribunal decisions from 2008 to present. Leveraging its learnings from the codified case law, the classifier determines outcomes with 90 percent accuracy.
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