Lawyer gives insights into duty to accommodate and how to navigate the law
Early Wednesday morning inside a church in Orillia, Ontario a group of about a dozen safety professionals gathered for coffee, pastries, and a presentation about accommodating employee disabilities and specifically human rights legislation about the “duty to accommodate to the point of undue hardship.”
Dan Black is an employment lawyer with Caravel Law LLP and says, "no employer can subject someone to unequal employment." If a worker's ability to perform their job is impaired or impacted by a disability, it becomes the employer's responsibility to make reasonable accommodations.
Black touched upon the historical stigmatization of disabilities, including mental health issues, highlighting the need for open-mindedness and understanding. But he also made it clear that employers, and health and safety professionals, have a right to information that can help them better understand the employee’s limitations.
The topic may seem to be more in the human resources realm than safety, but “the Human Rights Code expressly obligates employers to take into consideration health and safety factors and the duty to accommodate,” says Black, which is why the group of safety professionals were so interested in what he had to say.
Black told the group they can add value to their organizations and clients by obtaining the information they need. "You don't just have to accept a basic doctor's note stating, 'can't work.' There are ways to gather more information and make better-informed decisions."
Black’s advice when dealing with an employee who says they can’t work because of physical or mental disability is to rank duties and responsibilities based on physical or mental demands, importance, and frequency.
He urges health and safety professionals to conduct a comprehensive assessment, and then encourage the employee to share the assessment with their doctor. While the worker may not be able to perform all their regular duties, there may be some tasks they can still handle, or new ones that can be assigned.
"Anything is better than nothing. And the more information you give the doctor about what the job entails, what it requires, the better information you're going to get back from the doctor," says Black.
Long-time safety professional and consultant, Peter Sturm, organized the session and says that is one of the most important takeaways for safety professionals. "Preparing a list of duties and responsibilities helps identify which tasks may be physically or mentally onerous and allows for a more informed approach to accommodation."
Sturm also emphasized the importance of taking a holistic approach to disability management, which he says is all part of building a strong health and safety culture. “If you don't take ownership of disability management, you risk losing control and becoming irrelevant to the overall health and safety program," stated Sturm.
The event underscored the need for proactive measures, thorough demands analysis, and open communication to ensure effective accommodation and foster a supportive workplace environment for employees with disabilities.
