Meeting the duty to accommodate and managing disability proactively
By Brian Kreissl
I have mentioned a few times on this blog and other forums how age discrimination makes little sense because we were all young in the past, and most of us will be old at some point. Time really does seem to go much faster the older we get, and it is true that at some point we find ourselves being at an age we considered positively ancient not so long ago.
Disability is very similar in many ways because we can all become disabled at some point in our lives due to illness, accidents or the aging process. According to the Ontario government, approximately 15 per cent of the population has some type of disability. That figure is likely to increase as the population ages.
Unlike race, nationality, gender or sexual orientation, which do not usually change (other than in the case of gender reassignment surgery), disability is one of the prohibited grounds of discrimination that could potentially apply to anyone. While I’m not saying other types of discrimination should be condoned or justified, the fact that we can all become disabled is something we can point out to people when they make discriminatory comments or fail to accommodate people with disabilities.
Misconceptions regarding people with disabilities
Most HR practitioners are familiar with the duty to accommodate, and that duty is most often associated with disability, although it also applies with respect to the other prohibited grounds of discrimination. However, there are certain misconceptions about the duty to accommodate that persist despite evidence to the contrary. This factsheet from the Michigan Community Service Commission deals with some of those misconceptions.
In a Canadian context, some people still believe the duty to accommodate is more or less absolute. While the threshold is rather high, the duty to accommodate applies only to the point of undue hardship. The Supreme Court of Canada has ruled that, contrary to popular belief, “impossibility” is not the standard of undue hardship.
This means that small organizations in particular cannot be expected to completely disrupt their operations or spend huge amounts of money to accommodate employees with disabilities (although accessibility legislation in some jurisdictions, for example, does require organizations to make modifications to the built environment in order to make their workplaces more accessible). In fact, many accommodations required by people with disabilities cost little or nothing at all.
Another misconception many people have is that people with disabilities are somehow “sick” and require more time off than other employees. In fact, several studies have confirmed that people with disabilities tend to take less time off work than those who are not disabled.
Disability and attendance management programs
Having said that, employers do need to accommodate disabled employees who are off work due to an illness or injury, whether or not the absence was a result of injuries sustained in the workplace. Employers can help manage costs, meet their duty to accommodate and support early and safe return to work by adopting an integrated approach to disability management that deals with disability proactively and integrates all of their disability management programs such as sick leave, short and long-term disability, attendance management programs and workers’ compensation claims.
It is important to remember that employees have an obligation to participate in the accommodation process themselves and are required to do their part in meeting the duty to accommodate. To a certain extent, disability can also be managed proactively, at least with respect to injuries sustained on the job. The idea is to make the workplace safer by complying with the provisions of occupational health and safety legislation, implementing employee wellness programs and paying special attention to concerns such as ergonomics, air quality, the built environment, job design, bullying and harassment, stress management and certain aspects of organizational culture.
Disability management resources from Carswell
Most employers want to do the right thing. However, it isn’t always easy to determine how to manage and accommodate disability in the workplace.
Fortunately, Carswell does have some resources that can help employers in that regard, such as the forthcoming second edition of the Human Resources Guide to Managing Disability in the Workplace, by Nancy Gowan and the Human Resources Guide and Toolkit - The Duty to Accommodate and Disability Management, by Barbara Humphrey.