Tap Into EmployAbility Conference
October 3, 2003Mark H. Mason
Tap Into EmployAbility
Overview
• Legal Issues• Practical Issues
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Human Rights Code
• Provides protection to enumerated groups of persons in employment to eliminate discrimination and harassment
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Social Standards of the HRC
1. Service2. Employment
• all aspects including pre-employment
3. Protected Grounds• disability (handicap or perceived
handicap) is one of 14 grounds
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Social Standards of the HRC
4. Exceptions:a) BFOR:
• impression is not enough• statistics and scientific evidence
b) Accommodation: • you must try and try again!
c) Undue Hardship:• high standard
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Duty to Accommodate – s. 17(2)• “… shall not find a person incapable
unless it is satisfied that the needs of the person cannot be accommodated without undue hardship … considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”
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Accommodation Principles
• Process of assessing accommodation is important
• Possibilities may include:• Own job with modification• Other available job
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Some Limits on the Duty to Accommodate
• Accommodate the handicap, not the inability
• No obligation to create an unproductive job
• Displacement of other employees
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Common Fears
• High cost of accommodation• Lack of employee productivity• Rising Insurance Rates• Increased risk of accidents
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Barriers to Employment
a) Physical barriers: • building structure • communications
b) Attitudinal barriers: • beliefs and assumptions
c) Systemic barriers: • hard to identify
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Hiring Considerations
• Swim in the deep end of the pool as well
• Give all applicants an equal opportunity to apply
• Re-think your regular recruiting activities
• Encourage applications
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Selection of Candidates
• Ability to perform the essential duties of the job
• Ask each candidate the same questions
• Ensure testing measures the skills and abilities needed in the workplace
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Selection of Candidates
• Accommodation during the application process:a) application form
b) format of testing materials
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Once a Candidate is Selected• Employers right to expect
essential duties of the job to be performed
• Accommodation starts with the employee
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Request for Accommodation
• Relax and breath!• Treat the matter seriously• Assess the employee’s needs and
try to accommodate those needs• Individualized process• Undue hardship
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Undue Hardship
• Costs – must be quantifiable• Health and safety requirements• Is the standard now
“impossibility”?• Unacceptable undue hardship
arguments
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Performance Management
• What is the standard of performance which may be expected?
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Performance Management
• Entitled to hold all workers to the same standard of performance
• Entitled to evaluate all employees using the same performance criteria
• Qualifier – subject only to required accommodations
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Performance Management
• What can you discipline and/or terminate an employee for if that person has a disability?
• Anything for which you would otherwise discipline and/or terminate an employee who does not have a disability subject to accommodation
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Performance Management
• Ensure the following:a) The decision is not based on the disabilityb) Discipline/termination is applied consistentlyc) Discipline/termination is in accordance with policies
Tap Into EmployAbility Conference
October 3, 2003Mark H. Mason