Disability Discrimination and Accommodation

This assignment delves into the topic of disability discrimination and accommodation in the workplace. It discusses the Canadian Human Rights Code and other statutes related to disability discrimination, ensuring that no employee is discriminated against based on disability. The assignment also explores employer accommodation and labor supply of disabled workers, as well as employer policies and practices to manage and prevent disability. It provides a comprehensive understanding of disability-related issues in employment, including return-to-work programs and mental health at work.

Running Head: EMPLOYMENT LAW
EMPLOYMENT LAW
Name of the student:
Name of the University:
Author Note

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Table of Contents
Introduction......................................................................................................................................2
Thesis statement...............................................................................................................................2
Summary of legal framework..........................................................................................................2
My opinion about which of the two views is superior.....................................................................8
Conclusion.......................................................................................................................................9
Bibliography..................................................................................................................................10

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Topic: Topic: Duty of the Employer to Accommodate Serious Illness: Is it fair to Employers
and Co-Workers to Keep a Job Open for Years for a Sick Employee?
Introduction
It is to be mentioned that being diagnosed with a critical illness not only has adverse
effects on the employee but also on the employer of the employee. Whether an employer should
keep the position of the sick employee open for years is subject to debate. In most cases
employers are sympathetic and supportive of the employees when they convey the news of their
illness to the employers. However some employers react negatively to the news of illness of the
employees which makes the employees feel that they are a burden to the company or
organization.
Thesis statement
The thesis statement for this research essay is that it is not fair to keep a position of the
sick employee open for years. However, it is the duty of the employers to provide special
accommodation to sick employees and employees with disability. If such employee fails to
perform essential duties the employer can fairly dismiss the employee.
Summary of legal framework
In the case Scott Watts v. High Quality Lifestyles Ltd Scott Watts was employed as a
live-in support worker in High Quality lifestyles. In 2004 Scott was diagnosed with H.I.V
positive. It is to be mentioned that Scott had expected that his employer would be considerate
and sympathetic about his as he received a similar reaction from his previous employer,
MacDonalds.

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However after conveying the news of his illness he was suspended and later
dismissed. It is to be mentioned that he was dismissed on the ground of a risk assessment that
stated that there was a potential threat of transmission of the disease to a service user. There was
a claim of Scott Watts that he had been a victim of direct disability discrimination. This claim
was upheld in the initial hearing however the decision was subsided as the case was lost on
appeal. The Employment appeal tribunal stated that the former employment tribunal had
mistakenly judged whether Scott Watts had been treated less favorably than other employees
who were suffering from communicable disease. According to section 9 part IV of Human
Rights at work it can be stated that it is the duty of the employers to accommodate the needs of
the employees as accommodating the needs of the employees can be regarded as the basic human
rights. This section specifically sheds light on the issues that the employers may face while they
respond to the requests made by the employees suffering from disability.
Section 17 of the Code of Human Rights at work states that people suffering from
disabilities have the right to request for special accommodation in the workplace in order to
ensure that such employees suffering from disabilities are not deterred from performing their
duties and roles assigned to them (Canadian Human Rights Act, 2018). This section states that
when the employee fails to deliver or perform his actions even after being provided with special
accommodation or if providing special accommodation is likely to create undue hardship a
decision of terminating the employees would not result in direct or indirect discrimination.
However it can be stated that once employees are made aware of the need of special
accommodation, it is the duty of the employer to provide the employee with special
accommodation.

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It is to be stated that for providing special accommodation it is important to
differentiate essential duties of the employer from non essential duties. According to this code it
can be said that any person who fails to perform his non essential job duties, such person must be
provided special accommodation by the employer. A person suffering disability must also be
provided with special accommodation so that he can perform his essential duties till the point of
undue hardship. However, it is to be stated that a conclusion should not be reached about the
inability of a person to perform essential duties without actually testing such person’s ability.
The employer is required to do innovative adjustments for the purpose of providing special
accommodation to the employee with disability.
Such accommodation can even include adjustment of the performance standard as long
as such adjustment does not create undue hardship. It is to be stated that organizations and
employers are must provide special accommodation for disabled employees for the needs of the
employees that are known to them. In cases when the employees fail to communicate their
disabilities to their employers due to their nature of disability employers must offer special
accommodation to employees who seem to be suffering from illness. However, employers are
not required to diagnose illness or disabilities of employees and second guess their health status.
The rights related to disability of employees in Canada are protected by the Canadian Human
Rights Act and the Canadian Charter of Rights and Freedom (laws-lois.justce.gc.ca, 2018) It is to
be mentioned that the Canadian Charter of Rights and freedoms is an integrated part of the
constitution of Canada. Section 15, of the charter states that every person in Canada has the right
to be protected from discrimination on the grounds of race, religion, sex, age, color, physical and
mental disability.

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Thus it can be stated that governments and organizations are not allowed discriminate
employees on the grounds mentioned above which includes physical and mental disability.
According to subsection 15(2) of the charter it can be stated that person with physical and mental
disabilities are provided improved employment opportunities. Subsection 15(2) of the act aims to
safeguard and protect the rights of disabled persons related to employment. Further the Canadian
Human Rights Act of 1977 aims to protect the Canadians from discrimination of any sort.
Discrimination of Canadians are prohibited when they avail services or are employed under
federal government, first nations government and private companies which are regulated by
federal government.
It is to be stated that individuals have been granted the right to protect themselves in
accordance with the provisions as given in the Canadian Human Rights Act 1977 if they are
subjected to any of the 11 grounds of discrimination as provided in the Act (Canadian Human
Rights Act, 2018). Further it is to be stated that the rights of the employees in Canada are
protected by the Employment Equity Act (Employment Equity Act, 2018). Policy on the Duty to
Accommodate Persons with Disabilities in the Federal Public Service has further aimed to
ensure that people suffering from disability are not discriminated against (www.tbs-sct.gc.ca,
2018) . The Policy has been developed by the treasury and the public service commission to
develop barrier free work environment and inclusive work environment. The purpose of this
policy is to make all the individuals feel include and valued while being employed in federal
services and make sure that individuals are appointed on the basis of merit and no employee is
discriminated against. The aforementioned policy has been drafted in compliance with the
fundamental legal principles of Canada. It is to be mentioned that the Canadian Courts have

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realized that special accommodation is necessary to be provided to people with special
disabilities in order to ensure equal participation of all individuals in the society.
Comparison and contrast of two different views in respect of the legal issue
It is subject to debate whether it is fair to the employer to keep a job position open for
an employee who has been absent from work for a long time due to prolonged sickness. While it
can be said according to the legislative statutes and codes discussed above that employers have
the responsibility to provide special accommodation to people with disabilities and make
arrangements for them so that they can perform their operations, keeping a position open for a
sick employee may be unfair to other co workers and employers. According to Bell (2015), it can
be said that the sick employee might be a burden on the management of the organization
concerned and challenging to the resources of business. However, every employer must follow
certain protocols before reaching a conclusion about when to close the job position of the sick
employee and when such employee is to be dismissed. The best practice for the employers is to
stay in touch with the sick employee and be supportive of him throughout his sickness. Such
employer must also ask for the consent of the sick employee for the purpose of obtaining his
medical records. The employers in addition must make enquiries about the sick employee’s
prospect of returning to work for the purpose of keeping track of their progress.
It has been opined by Shankar et al. (2014), that for the purpose of dismissing an
employee due to prolonged sickness, an employer must make all reasonable adjustments so that
the sick employee can return to work. The adjustments made by the employer for the purpose of
making the employee return to work is to be judged from the perspective of a reasonable person
(Shaw et al., 2016) It is up to the discretion of employees to make reasonable adjustments for

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sick employees who do suffer from any disability, however making such reasonable adjustments
is not mandatory where he employee does not suffer from any disability.
However in contrary to the aforementioned views it has been opined by Ben-Shalom
(2016), that in cases where even after making reasonable adjustments for sick employees, such
employees are unable to return to work, the employers must consider appointing them in any
other position available in the organization. However ever if no other position or post is available
the employer can fairly dismiss the sick employee due to his medical incapability. Dismissing an
employee for medical incapability is only permissible when the employee has been sick for a
prolonged period of time and does not show any signs of recovery to return to work. The time
period in question is to be assessed by the employer from the perspective of a reasonable man
and the difficulty faced by the employer to cover the absence of the sick employee is also to be
considered while taking a decision to terminate the sick employee (Bronchetti & McInerney,
2015).
It is argued by Hill, Maestas & Mullen (2016), that an employer is not required to keep
a position open for an indefinite period of time as that might have detrimental effects on the co-
workers of the employee and the employer. However before taking a decision of dismissing the
employee, an employer must ensure that the all the investigations have been carried out in a fair
manner and all the relevant information related to the medical records of the sick employee has
been gathered and clarified and the sick employee has been informed about the decision of the
employer.
It is to be mentioned that although the Human Rights Code of Ontario prevents any
discrimination of employees on the basis disability and the employers are required to provide

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special accommodation to the employees with disabilities under section 17 (www.ohrc.on.ca,
2018). Employers are not required to keep the job positions of sick employees who do not suffer
from any disability open for an indefinite period. The employer must be aware of how much
medical information he is entitled to for the purpose of assessing the reasonable time period of
when the employee is expected to return to work. The employer can prepare a list of questions to
be asked to the doctors for the preparation of the assessment and making reasonable adjustments
and accommodations (Santuzzi et al., 2014). However, the questions prepared by the employer
must not intend to reveal about the diagnosis of the employee, he can only ask for the disability
or the side effects of the medication taken by the employee in order to provide necessary
accommodation and arrangements.
My opinion about which of the two views is superior
In my opinion it can be said that it is unethical and illegal to discriminate employees
on the basis of their disabilities and to dismiss an employee for being on a sick leave for a
prolonged period of time. However keeping a job position open for an indefinite period of time is
also burdensome to the employer and co workers. According to me employers must maintain
communication with the sick employee in consideration and try to provide all the necessary
arrangement so that they can return to work. They must also wait for a reasonable time period
before reaching any decision. However, if the sick employee fails to return to work and perform
the essential duties even after being provided with the necessary accommodation the employer
can fairly dismiss the sick employee following the procedures of the employment contract.
According to the human rights code it can be said that employers are required to
contact employees when they are on sick leave for the purpose of assessing the length of absence

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of the employees, making accommodation, changes in the prognosis and to identify whether such
employee would be capable of returning to work in the near future.
Conclusion
Thus in conclusion it can be said that is that it is not fair to keep a position of the sick
employee open for years. However, it is the duty of the employers to provide special
accommodation to sick employees and employees with disability. In relation to the
aforementioned statements, it is to be said that employers although are required to make all the
reasonable requirements they are not required to keep job positions open in circumstances when
the employee fails to perform the essential duties even after being provided with the special
accommodation or when the employee is not expected to return to work in a reasonable time
period. However it is to be ensured in relation to the provisions as stated in section 17 of the
Human Rights Code and other statutes related to disability discrimination that no employee is to
be discriminated on the basis of disability.

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Bibliography
9. More about disability-related accommodation. (2018). Ontario Human Rights Commission.
Retrieved 7 March 2018, from http://www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-
employment/9-more-about-disability-related-accommodation
Bell, M. (2015). Mental health at work and the duty to make reasonable adjustments. Industrial
Law Journal, 44(2), 194-221.
Ben-Shalom, Y. (2016). Steps States Can Take to Help Workers Keep Their Jobs after Injury,
Illness, or Disability. Washington, DC: Mathematica Policy Research.
Bronchetti, E. T., & McInerney, M. P. (2015). What Determines Employer Accommodation of
Injured Workers? The Influence of Workers’ Compensation Costs, State Policies, and Case
Characteristics. ILR Review, 68(3), 558-583.
Canadian Human Rights Act. (2018). Laws-lois.justice.gc.ca. Retrieved 7 March 2018, from
http://laws-lois.justice.gc.ca/eng/acts/h-6/
Constitution Acts, 1867 to 1982. (2018). Laws-lois.justice.gc.ca. Retrieved 7 March 2018, from
http://laws-lois.justice.gc.ca/eng/const/page-15.html
Employment Equity Act. (2018). Laws-lois.justice.gc.ca. Retrieved 7 March 2018, from
http://laws-lois.justice.gc.ca/eng/acts/E-5.401/
Heritage, C. (2018). Rights of people with disabilities - Canada.ca. Canada.ca. Retrieved 7
March 2018, from https://www.canada.ca/en/canadian-heritage/services/rights-people-
disabilities.html#a1

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Hill, M. J., Maestas, N., & Mullen, K. J. (2016). Employer accommodation and labor supply of
disabled workers. Labour economics, 41, 291-303.
Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service -
Canada.ca. (2018). Tbs-sct.gc.ca. Retrieved 7 March 2018, from
http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12541
Santuzzi, A. M., Waltz, P. R., Finkelstein, L. M., & Rupp, D. E. (2014). Invisible disabilities:
Unique challenges for employees and organizations. Industrial and Organizational
Psychology, 7(2), 204-219.
Scott Watts v. High Quality Lifestyles Ltd
Seing, I., MacEachen, E., Ekberg, K., & Ståhl, C. (2015). Return to work or job transition?
Employer dilemmas in taking social responsibility for return to work in local workplace
practice. Disability and rehabilitation, 37(19), 1760-1769.
Shankar, J., Liu, L., Nicholas, D., Warren, S., Lai, D., Tan, S., ... & Sears, A. (2014). Employers’
perspectives on hiring and accommodating workers with mental illness. Sage Open, 4(3),
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Shaw, W. S., Main, C. J., Pransky, G., Nicholas, M. K., Anema, J. R., & Linton, S. J. (2016).
Employer policies and practices to manage and prevent disability: foreword to the special
issue. Journal of occupational rehabilitation, 26(4), 394-398.

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