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Accommodating Employees with Disabilities Human Rights in the Workplace

Human Rights Claims and the Duty to Accommodate Mental Illness

Employees may experience human rights discrimination in some work environments, which can be incredibly difficult. In Ontario, there is a wide range of grounds for discrimination which can arise in the workplace. For instance, there may be discrimination based on age, disability, gender identity, race, and more. Some people may be discriminated against because of their mental illness as a disability. Typically, in the workplace, this would be related to an employer’s duty to accommodate an employee with a disability. An employer’s steps to accommodate the employee are relevant information. Additionally, the Human Rights Tribunal may assess the employee’s efforts in providing adequate information about their disability so that the employer can adequately accommodate them. 

In this post, we will discuss the connections between an employee’s mental illness, human rights discrimination, and the duty to accommodate. We will examine a case example, Yan v. 30 Forensic Engineering Inc., 2023 ONSC 6475, which was an appeal of the Human Rights Tribunal’s decision that there was no discrimination based on post-traumatic stress disorder (PTSD) experienced by the employee. The court upheld the Tribunal’s finding that the employer was not provided an opportunity to accommodate the employee, as she had not provided specifics of her mental illness so that the employer could adequately address the issues. This post will provide key takeaways for parties involved in human rights claims involving mental illness. 

Are Mental Illnesses Covered Under Human Rights in the Workplace?

The Human Rights Code covers human rights legislation in Ontario. The Code prohibits discrimination based on several protected grounds in specific contexts, which include discrimination experienced in the workplace. 

While mental illness is not explicitly set out as a protected ground in the Code, it is included under the category of disability, which is a protected ground. In particular, an employer is prohibited from terminating or denying a promotion for an employee due to a mental health disability. Employees are also protected from harassment in the workplace based on mental health disability. 

What is the Duty to Accommodate?

The Ontario Human Rights Commission has also set out policies for enforcement of the Code. In their Policy on preventing discrimination based on mental health disabilities and addictions, in section 13, employers have a duty to accommodate the needs of individuals with psychosocial disabilities to ensure they have equal opportunities, access, and benefits. The duty to accommodate includes efforts by an employer to ensure that the employee is integrated and able to participate fully in their workplace. This mirrors the case law requirements for employers to accommodate a disability. 

Typically, an employee would ask their employer for assistance with their mental health issues if it is affecting their employment. However, in some cases, an employee’s disability may make it difficult to seek help from their employer. Therefore, an employer would have the duty to take steps in seeking out more information from an employee who may require assistance with a mental illness that is impacting their employment. The employer must try to understand the employee’s needs to tailor the solution to the employee’s circumstances. The employer would need to seek relevant information, such as how the mental illness affects the employee’s job duties. The employee may also request accommodations, and the employer can consider whether those are appropriate. The employer will need to consider if any long-term accommodations are required. 

Some examples of accommodation for an employee with a disability include:

  1. Providing flexible work hours or periods of leave; 
  2. Allowing the employee to work from home or providing quiet spaces for the employee in the workplace; 
  3. Organizing regular check-ins with the employee to adapt the plan to their needs; 
  4. Reducing triggers that may exist in the workplace. 

To fulfill their duty to accommodate an employee’s disability, employers must make all reasonable efforts to accommodate until the employer reaches a point of undue hardship. This means that the employer is not required to negatively impact their business by accommodating the employee, which requires specific and quantifiable evidence. There is a very high bar to show undue hardship, and employers are expected to work with the employee to provide a solution to accommodate their disability, including a mental illness. 

The duty to accommodate can also be seen as a cooperative duty. In particular, the employee needs to collaborate with their employer and provide sufficient information on how their mental illness affects their job duties so that appropriate accommodations can be implemented. The employee also has to take the opportunities from the employer to discuss further what accommodations can be made. 

Evidence of Mental Illness Required for Employer to Accommodate

In the Yan case, the plaintiff claimed that she experienced discrimination from her employer based on her PTSD. She claimed that the employer failed their duty to inquire further, which was part of their duty to accommodate her mental illness as a disability. 

The Human Rights Tribunal found that there was no discrimination based on her post-traumatic stress disorder. In particular, she had not provided much evidence concerning her mental illness and how it affected her job duties. There was also evidence that the employer was aware that she was experiencing some mental health challenges and referred her to speak with human resources to inquire further on what accommodations could be made. The Tribunal found that the employee did not take steps to reach out to human resources, even though she had done so on different grounds in the past. As a result, there were no further conversations about accommodation for her mental illness. The duty to accommodate was a cooperative duty, which also required the employee to provide information that could allow the employer to understand how they could accommodate her mental illness. 

The employee appealed. The Supreme Court found that the Tribunal made no reviewable error on this point, as they found that the employer did make efforts to inquire further, and the employee did not take steps to provide further information. 

Key Takeaways 

Employers have a duty to accommodate disabilities in the workplace, including mental illnesses. They must inquire further about how the mental illness affects the employee’s job duties. To provide sufficient accommodation, the employee is also expected to provide enough information so the employer can take steps to accommodate. 

Contact Haynes Law Firm in Toronto for Advice on Accommodating Disabilities in the Workplace

Our experienced employment law legal team at Haynes Law Firm in Toronto can assist you with issues concerning accommodating disabilities in the workplace. For employees, our goal is to ensure that they understand their rights and receive maximum compensation in wrongful dismissal cases and human rights claims

Haynes Law Firm also assists employers in avoiding liabilities that may arise from failure to adequately accommodate employees with disabilities, which can lead to constructive or wrongful dismissal findings. Our team works with employers to prevent human rights violations in the workplace. We are dedicated to finding the best resolution for you.

To book a consultation, please get in touch with us online or by phone at 416-593-2731.

Categories
Accommodating Employees with Disabilities

Are Employers Required to Accommodate a Long Commute?

Ontario employers are legally required to accommodate employees with disabilities that are protected grounds under human rights legislation. There can be various creative solutions that an employer and employee can devise to address barriers to the workplace, but how far does an employer need to go to fulfill their duty to accommodate? For instance, if a long commute to the workplace impacts an employee’s disability, to what extent and through what means is the employer required to accommodate?

This post will provide an overview of the employer’s duty to accommodate a disability in the workplace with reference to the case of Ontario Secondary School Teachers’ Federation v Toronto District School Board, in which an arbitrator found that the employer was not required to transfer the employee to a different location, even though her long commute appeared to be impacted by her disability. This post will provide important takeaways for employers and employees with disabilities.

What is an employer’s duty to accommodate a disability?

Employers must accommodate an employee’s disability in the workplace, as required by human rights legislation. This means that employers must adjust their policies, procedures, and the employee’s working conditions to meet the needs arising from their disability. This can include adjusting the employee’s schedule, workplace location, duties, etc., so that the employee can effectively perform their duties.

The bar is quite significant for employers to accommodate employees with disabilities. Employers must make all reasonable efforts to accommodate the employee until the employer reaches a point of undue hardship.

Procedural and substantial duties to accommodate

Generally, there are two stages for an employer to have fulfilled their duty to accommodate, as they have procedural and substantial duties to accommodate.

An employer’s procedural duty to accommodate includes making efforts to have a detailed understanding of the employee’s needs so that they can properly accommodate. This may or may not incorporate the employee’s requests, however, the information gathered is an important step for the employer to address the employee’s needs appropriately. In particular, the employer should gather information on how the employee’s disability affects their job duties, requests sought by the employee, and whether any timelines for recovery may affect what short-term or long-term accommodations are required.

After the procedural stage, the employer has a substantial duty to accommodate. This means that the employer must find and implement solutions to address the employee’s needs, as revealed by the information-gathering stage. The employer must consider different possible solutions and whether alternatives may be appropriate. If there are no reasonable solutions, the employer is to explain this to the employee.

There is a high bar for employers to accommodate employees with disabilities. They are required to accommodate up to a point of undue hardship. Employers must make all reasonable efforts to accommodate an employee’s disability. Still, they are not expected to negatively impact the business, such as spending significant funds to accommodate. It is the employer’s responsibility to show that they cannot accommodate to a point of undue hardship, which requires specific and quantifiable evidence. If this cannot be proven, then an employee may be able to claim that they were constructively or wrongfully dismissed as their disability was not accommodated in the workplace.

Employee claims employer’s refusal to transfer her does not accommodate her disability

In the case of Ontario Secondary School Teachers’ Federation v Toronto District School Board, an arbitrator addressed the question of whether the employer in the case was required to accommodate the employee’s disability by transferring her to a different location, which would reduce her commute time.

In this case, the employer was the school board. The employee was a teacher who experienced chronic pain. In particular, she provided medical evidence that she experienced fibromyalgia, scoliosis, chronic fatigue syndrome, seasonal affective disorder, asthma, sleep apnea, and irritable bowel syndrome. As a result, the employee continually experienced muscle pain and stiffness, which would leave her exhausted. To manage her conditions, she practiced yoga each day, and used a combination of medication, physiotherapy, massage therapy, and more. She testified that her conditions did not impact her ability to teach.

Employee’s symptoms could be worsened by driving

Her doctor testified that there is no cure for her fibromyalgia and the employee was simply required to continually manage her symptoms. He also told the Court that her symptoms could be worsened by driving.

When she first began working with the school in Toronto, she lived approximately 16.5 kilometers away. A few years later, her family purchased a home in Markham, which was 29 kilometers away from the school. She kept her original apartment and rented it out.

Could the employee’s commute be shortened?

It would take the employee approximately 75 to 90 minutes each way to drive to and from the school to her home in Markham. She testified that she had tried different routes to get to and from the school to avoid traffic and limit her commute time or make stops along the way so that she could stretch. While her commute could be shortened if she went home right after classes ended, she would remain at the school for longer so that she could engage with students, assist with their extra-curricular activities, prepare for her classes, and complete administrative tasks.

There was an express highway that the employee had not tried to use, as she did not want to pay the highway tolls. There was evidence that she would save significant time by taking this highway during her commute. Her commute time would be reduced to approximately 35 to 70 minutes each way.

Employers only required to accommodate for needs, not preferences

The employee requested that she be transferred to a different school, which was much closer to her home in Markham. The arbitrator noted that the employer is required to accommodate the employee’s needs, but not necessarily the employee’s preferences. Also, the arbitrator identified that the main issue was the length of the commute.

The arbitrator found that the employer fulfilled their duty to accommodate. They had tried to set up meetings to address the in-school accommodations and suggested a partial return to work, which would allow her to commute while there was less traffic. However, the employee refused to consider these as a solution and would only agree to a transfer to a different school.

Employee obligated to accept reasonable accommodations by employer

In this case, the doctor’s evidence was that she had previously noted that the employee could sit for about 20 to 30 minutes before she needed to stand and stretch. The doctor equated this time to driving approximately 15 kilometers. The arbitrator noted that this did not suggest that the employee could not resume driving after stretching. Additionally, there was no evidence to suggest that going to work caused an adverse effect on the employee over time, as no deterioration was noted by the doctor and there appeared to be no other medical changes that exacerbated her symptoms.

The arbitrator noted that the employee had an obligation to accept reasonable accommodation offered by the employer. The employee had a duty to facilitate implementation of the proposed plan.

Key takeaways for employers and employees

While there is a significant obligation for employers to fulfill their duty to accommodate the needs of an employee with a disability, an employee’s refusal to consider reasonable accommodation can frustrate the process. In these types of situations, an employee may have difficulty succeeding in their claim that the employer failed to fulfill their duty to accommodate their disability.

Contact Haynes Law Firm in Toronto for Advice on Accommodating Disabilities in the Workplace

Our experienced employment lawyers at Haynes Law Firm in Toronto can assist you with issues concerning accommodating disabilities in the workplace. For employees, our goal is to ensure that they understand their rights and receive maximum compensation in wrongful dismissal cases and human rights claims. Haynes Law Firm also assists employers to avoid liabilities that may arise from failure to properly accommodate employees with disabilities, which can lead to findings of constructive or wrongful dismissal. Our team works with employers to prevent human rights violations in the workplace. We are dedicated to finding the best resolution for you.

To book a consultation, please contact us online or by phone at 416-593-2731.