Accommodating Employees with Disabilities: a Primer

Copyright © Alan Cantor 1996. All rights reserved.
A version of this article appeared in Worksite News, Western Canada's Occupational Health & Safety News Magazine. Vol. 4, No. 3. March/April 1996, pp. 4-6.

Series Introduction

In the first of two articles, Alan Cantor illustrates the idea of employment accommodation for people with disabilities; discusses the role of human rights legislation in settling the question of who is responsible for providing workplace accommodations; and clarifies the extent to which an employer is responsible for ensuring that a qualified individual is accommodated.

The benefits of accommodating employees with disabilities will be the subject of the second article. Arguing against the commonly held view that workplace accommodations are expensive, Mr. Cantor demonstrates that many accommodations cost little or nothing, add value to the workplace, and result in significant benefits for a company.

Part 1: The Duty to Accommodate

Disability and accommodation defined

The World Health Organization defines disability as "any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being. " Disabilities are classified as physical or mental; and as visible (conspicuous — limb loss, paralysis, total blindness, and so on) or invisible (inconspicuous — minor visual, auditory, or mobility impairments, certain learning disabilities, and some psychiatric conditions.)

Disability increases with age. Statistics Canada reports that over 27% of Canadians between the ages of 55 and 64 have disabilities, compared to 14% of those between 35 and 54. The severity of disability, too, increases with age. Older people are more likely to have a severe disability than their younger counterparts.

A person who has been injured may also be considered disabled, temporarily or permanently. In either case he or she may need accommodations to perform essential job duties.

The goal of employment accommodation is to tailor work to meet the needs of an individual. It is an ongoing process of identifying and removing — or minimizing — the adverse affects of barriers in the work environment, or the method of doing work. These barriers prevent an otherwise qualified person with a disability from achieving the expected outcomes of the job.

Accommodation occurs during all phases of the employment system, including recruitment, testing, interviewing, training and promotion. Only when a person has been properly accommodated is it possible to evaluate his or her work performance or suitability for a job.

The means to removing and minimizing the barriers to work are endless. Common ways to accommodate an individual include:

replacing a tool with another of a superior design
providing a technical aid (e.g., speech-output or voice-activated computer system; text magnification software; modified keyboard)
reorganizing a work area
widening a door or hallway
lowering or raising a work surface
swapping non-essential job duties with other workers
modifying the employee's timetable
offering part-time or shift work
providing clerical or other human support services (e.g., sign language interpreter)
coaching or retraining the employee
scheduling meetings in accessible venues
producing documents in alternative formats to normal print (e.g., large print; audio tape; Braille).

An individual benefits most when he or she has available many accommodation options. In the third article of this series, I will detail specific accommodation strategies, and outline a model for planning and implementing an individual workplace accommodation.

Employment accommodations serve two important purposes. First, they enable a qualified person to perform essential job duties. Second, accommodations allow the employee to participate in the culture of the workplace. For example, to work productively and comfortably at a desk, an office worker who uses a wheelchair may need a higher working surface. To attend meetings or eat in the cafeteria, building modifications may be needed. If the employee is to attend the annual picnic, the people planning the event should choose a wheelchair-accessible park. Ultimately, accommodations are a means of overcoming discrimination in the workplace.

Human rights codes in Canada and the duty to accommodate

Freedom from workplace discrimination is a fundamental tenet of Canadian society, and one of the first freedoms to attract legislative protection. Governments have enacted human rights laws to guarantee equal treatment for all people. These statutes prohibit discrimination on the basis of national or ethnic origin, colour, race, religion, marital status, family status, age, conviction of an offence for which a pardon has been granted, sex, sexual orientation/preference, and disability. Both physical and mental disabilities are prohibited grounds for discrimination.

There are thirteen equality rights laws in Canada: the federal Charter of Rights and Freedom (Constitution Act, 1982), and one human rights code for every province and territory. Although the provincial and territorial acts differ in details, all are subject to the Charter and must be interpreted in a manner consistent with it.

Every human rights statute in Canada requires, implicitly or explicitly, that the individual needs of a person with a disability be accommodated to enable him or her to perform the activities of work. The human right codes of Manitoba, Yukon and Ontario mandate a duty to accommodate individual differences. Although the remaining nine provincial and territorial codes and the Charter are silent on the duty to accommodate, the duty has been applied through case law to these human rights codes. Furthermore, the Supreme Court of Canada has repeatedly ruled that human rights laws implicitly incorporates a duty to accommodate, within certain standards of reasonableness. The Human Rights Commissions of provinces whose codes do not mandate the duty to accommodate, including Alberta, Saskatchewan, British Columbia, have published guides stating that employers are expected to provide extra assistance to those with special needs.

The duty to accommodate is not limited to the employer. Recent decisions by the courts and human rights tribunals have recognized that unions are subject to the duty to accommodate. By virtue of a requirement in the Charter that all persons do their part to uphold and respect human right legislation, it can be argued that co-workers are also subject to the duty to accommodate.

The test of undue hardship

To what extent is an employer responsible for ensuring that a qualified individual is accommodated? It is commonly believed — wrongly — that employees with disabilities can expect to be "reasonably" accommodated. The term "reasonable accommodation" is much bandied about these days. What does it mean?

The concept of reasonable accommodation is problematic. For whom is it reasonable? The employee or the employer? Who decides what is reasonable, and on what basis? A manager may refuse to implement an accommodation on the grounds that is "unreasonable," when in fact, it is merely unfamiliar or inconvenient. Obviously, a standard of reasonableness is too ambiguous to guarantee equal treatment for all people.

Human rights legislation in Canada expects employers to accommodate employees' special needs short of causing undue hardship. The standard of undue hardship makes it difficult for an employer to justify not accommodating a qualified employee. Any accommodation that the employer can provide without incurring undue hardship is reasonable.

The courts and human rights tribunals have yet to settle on an exact meaning for "undue hardship." In recent years judges and adjudicators have considered factors such as these when assessing undue hardship:

Cost: Is the accommodation prohibitively expensive?
External funding sources: Is funding available to pay for the accommodation?
Health and safety requirements: Does the accommodation pose health and safety risks? If so, to whom?
Collective agreements: Does the accommodation affect any standing collective agreements?

Cost, public health and safety, and collective agreements must be taken into account when assessing undue hardship; but the consequences of these factors must be balanced against the interests of the individual with a disability. Consider this situation. Is a railway obliged to accommodate a train conductor who has epilepsy?

The answer is not as simple as it seems. While incontestable that public safety would be compromised if a conductor were to have a seizure while driving the train, other risk factors must be considered also. What are the normal occupational risks of conducting a train? What safety features are built into the train system? Is the conductor's condition controllable by medication? How often does the employee have seizures? The risks to public safety will be assessed differently if the conductor has a seizure once every 15 days or 15 years.

Similarly, the risks must be weighed carefully when the accommodation jeopardizes the safety of the accommodated worker. Take as an example a construction worker who, as a result of a foot injury, cannot wear regular steel-toed boots. The worker can tolerate wearing athletic shoes. Would allowing the worker to wear non-protective footwear constitute undue hardship? In such cases, the willingness of the employee to assume increased personal risk is an important factor when assessing undue hardship.

When cases like these have come before the courts and human rights tribunals, judges and adjudicators have tended to rule that a marginally greater health and safety risk does not constitute undue hardship. The duty to accommodate takes precedence over the (unattainable) goal of eliminating all risk.

Although the provisions of a collective agreement has been a factor in assessing undue hardship, the duty to accommodate, practically speaking, overrides these provisions. Collective agreements cannot exclude the duty to accommodate because the agreement itself, if it prevents accommodation, is discriminatory.

As a general principle the point of "undue hardship" can be said to be reached when

all avenues for accommodating the individual have been explored;
it can be demonstrated that no suitable accommodations exist (e.g., there is presently no means that would allow a person who is blind to drive a taxi); and
the appropriate accommodations would cause undue hardship, i.e., removing the barriers to employment for the individual significantly threatens the financial health of the firm and/or the physical well-being of the public/co-workers.

Conclusion

In summary, human rights legislation in Canada balances the interests of employees and employers by giving persons with disabilities opportunities to succeed in the workplace, provided that doing so does not create undue hardship for the employer. Unions and co-workers are subject to the same human rights legislation, and therefore, must do their part to help accommodate people with disabilities. The main criteria for assessing "undue hardship" are cost, including outside sources of funding; and health and safety factors.

Happily, accommodating an individual rarely causes hardship of any kind. In fact, the benefits, both to the individual and to the company, are great. In the next issue of Worksite News I will discuss the incentives of meeting the needs of employees with disabilities.

Acknowledgments

I thank Mr. Bruce Drewett of the Ontario Ministry of Education for sharing with me his extensive knowledge of this subject, and for critiquing the first draft of this article; Ms. Barbara Roberts, M.S. OTR OT(C), of Queen's University for alerting me to vital details I may have missed; and to Ms. Lucina Fraser of the Ontario Ministry of Labour Library for guiding me through the maze of legal texts to exactly the references I needed to conduct my research.