Andrew Brine of our Vancouver office provides an overview of human rights in the employment context with a focus on duty to accommodate persons with disabilities in the workplace.
Complaints against employers arise when employees with a disability experience adverse treatment or discrimination, that can include terminations, demotions or pay cuts. Most battles are fought over proving the employee’s disability was a factor in the employer’s adverse treatment.
Canadian human rights legislation imposes a positive duty on employers to accommodate persons with disabilities to the point of undue hardship. Accommodation can include modifying the physical workspace, temporary assignments, a leave of absence or a substantive change in job duties. Employees must provide sufficient medical information about their functional limitations to trigger the need for accommodation. They also must mitigate their losses.
Employers are not required to accommodate an employee if the required changes would result in an undue hardship for the employer. What circumstances will constitute “undue hardship” for an employer is determined on a case-by-case basis. Indicators that undue hardship may result include affordability of the required accommodations, operational needs, and an unreasonable change of standards. If an employer can demonstrate undue hardship, the employer is discharged from this duty.