Legal Viability

 

In this section, you will find some of the common questions associated with persons with disabilities in the workplace. General answers and information have been provided, but if you have any specific questions that are not addressed here, or would like more detail and information on any of these topics, please contact Viable and we would be happy to assist you.

 

Are There More Legal Risks With Employees With Disabilities?

No, but in doing their due diligence, employers will want to have as much information as possible to make the best decisions in expanding their recruitment strategies. In a Viable focus group session, employers expressed a resounding interest for information on legal questions surrounding employment of persons with disabilities. Most employers wanted to know if they could operate under the same guidelines as with employees without disabilities. We decided to dedicate a resource section to frequently asked legal questions to address concerns about termination, handling complaints and your rights as an employer.

 

Legal FAQ

  1. Q: Will dismissing an employee with a disability result in a human rights complaint, due to discrimination?

    A: Employees with disabilities are to be managed and evaluated on the same grounds as their non-disabled colleagues. If the reason for dismissal was not based on a disability, there would be no case for legal action.

  2. Q: Does an employee or candidate have to disclose their disability to an employer?

    A: The employee or candidate is not required to disclose their disability. However, if the employee or candidate requires accommodation in order to properly perform their duties, they are required to make a request for accommodation. While the employer may not ask the reason for accommodation, they may request a medical note supporting the request. (See Salim Al-Saidi v Brio Beverages Inc.)

  3. Q: If employees are not required to disclose their disability, how can an employer be expected to accommodate them?

    A: While the employee does not have to disclose their specific disability, they must make a request for accommodation if their disability prohibits them from properly performing any of their duties. The employer can request a note from a physician stating what accommodations are necessary. (See Michael David Berridge v City of Calgary)

  4. Q: Is there any accommodation an employer can refuse?

    A: If the accommodation is to the point of undue hardship to the employer, the accommodation may be deemed unreasonable. (See more information on “undue hardship”)

  5. Q: If an existing employee is unable to perform a specific work duty due to their disability, can it be considered grounds for dismissal?

    A: If the work duty is found to be a bona fide occupational requirement (BFOR) for the position, and it is demonstrated that it is impossible to accommodate the individual without imposing undue hardship on the employer, the case for dismissal may be justified. (See the Canadian Human Rights Commission report on Bona Fide Occupational Requirements and Justifications)

  6. Q: What medical information is an employer allowed to request from a candidate prior to hiring?

    A: An employer may request a job-related medical examination, only after a conditional offer of employment has been presented to the candidate. Information requested needs to be restricted to information that impacts the applicant’s ability to perform the key requirements of the position. If a candidate is not being considered for employment due to a disability prohibiting them from performing a duty, the employer must ensure the duty is a bona fide occupational requirement. (See the Alberta Human Rights Commission Article for more information)
  7. Q: Our company would like to encourage applications from minority and underutilized groups. Are we allowed to state we would like to hire from these groups?

    A: A company can develop hiring policies that encourage application from minority or traditionally underutilized groups, so long as it is reasonable and justifiable. (Targeted Recruiting, Alberta Human Rights Commission)

  8. Q: What grounds may be cited as a case for discrimination?

    A: The Alberta Human Rights Act prohibits discrimination on the grounds of race, colour, ancestry, place of origin, religious beliefs, gender, age, physical disability, mental disability, marital status, family status, source of income and sexual orientation.

  9. Q: A Human Rights complaint has been brought against me. What do I do/What are my obligations?

    A: You will be contacted by the Human Rights Commission, where the nature of the complaint will be outlined and you will be given the chance to respond. (For an explanation of the complaint process, please see Information for Respondents)

  10. Q: I have an employee who has been away sick for one month, and now informs me they will be sick for another month. We can’t afford to leave the position open any longer. Can I dismiss the employee and re-hire for the position?

    A: An employer must show that accommodating the absence is causing undue hardship on the business. For example, high financial cost or disruption to the business may be considered undue hardship. Often, there are many options of accommodation that can be considered. In this situation, a temporary staffing agency can be utilized to fill the position during the sick leave.

  11. Q: I own a restaurant and an employee has informed me they have Hepatitis C. I see this as a potential health risk to my staff and customers. Am I within my rights to dismiss the employee?

    A: Under the Human Rights, Citizenship, and Multiculturalism Act, Hepatitis C qualifies as a disability. The employer must prove that they are unable to accommodate the employee to the point of undue hardship. Accommodations may include modified work schedules/work stations, refraining from using sharp objects, etc. (See Ruby Anne Repas v. Albert’s Family Restaurant and Lounge)

  12. Q: I have an employee whose job duties need to be expanded to include more physically intense labour. He claims that his due to a disability, he will not be able to take on these additional duties. Is the employee within their right to refuse to perform the duties?

    A: An employee typically does not have to comply with work duties imposed on them after their original hiring, where they have not been consulted on whether they are willing to take on the additional duties. Unless the employer can show that the additional duties are bona fide occupational requirements of the position, the employee can request accommodation in the form of restricting their job to the originally agreed upon duties. (See Leona Smith v Fawcett Truck Shop)