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According to many architects and lawyers disabled employees should self select out of a job!

Home / accessible design / According to many architects and lawyers disabled employees should self select out of a job!

I wonder if any of the architects, designers, lawyers and HR professionals who read this article will continue to be misinformed thanks to this biased article in Canadian Architect about Accessible Design being a minefield.

With the ADA in the US being litigated every day at great expense financially and in terms of brand damage and the AODA in Ontario with mandatory regulations one would think the Architectural, Design,  legal community & HR professionals would reach out to human factors design specialists to truly understand the huge economic benefits in designing for universality versus for disability.

17-20% (and growing annually) of the Canadian and US marketplace who have millions of dollars to spend per annum are not able to do so due to the fact architects and designers do not bring scientific knowledge about human physiology, anthropometrics, cognition, mental processing to the table. In the absence of the teaming of design with the human factor our society and marketplace will never become accessible to all age groups; all capabilities and all diverse groups.

Litigious games & human rights complaints will certainly become the minefield (to the benefit of litigators in the labour field) if this is the approach to be taken by the architectural, design, legal and HR communities. We look forward to bringing this to the discussion table at IIDEX and other design related forums as the assumption that people with bona fide disabilities are “demanding” and may not have a bona fide disability is false, misleading and unfounded in the majority of cases. Our 21 years with OPC and 30 years each experience in this field has proven this with solid  data and evidence.

Respectfully submitted by JE Sleeth, Olga Dosis Ergonomic and Accessible Design since 1991 Optimal Performance Consultants Inc

Note forwarded to the 2 editors of the Canadian Architect Magazine; “We would welcome the chance to describe this topic in terms of economic ROI and Benefits related to Diversity and Inclusion in the US and Canada relative to excellent, universal design. This article would be an excellent launch point and one that needs to be addressed. Remember Disability and Design is not able taking care of each individual need. It is about UNIVERSAL design to bring all members of society into the fold which is a human right and an economic imperative.”

Accommodating disabilities in workplace a ‘minefield’

by Mark Sabourin Canadian Architect Magazine

There’s nothing new about an employer’s duty to accommodate the needs of an employee with a disability. What’s changing is the scope of what constitutes a disability and the range of options available to an employer seeking to accommodate an employee with a disability.

“When people think of disabilities, they often think of visible disabilities,” says Kathy Jurgens, national program manager for Mental Health Works, a program of the Canadian Mental Health Association. But a worker with a disabling mental illness is as deserving of accommodation under the law as a worker in a wheelchair, she says.

Alcoholism and drug addictions are now accepted as disabilities. So is obesity, says Nayla Farah, director, Job Accommodation Service.

“It’s a minefield,” says M Richards , partner with Davis LLP in Toronto. The law is complex and the parties — employer and employee — have to address grave issues with significant implications at a moment heavily fraught with emotion, says Richards.

“As the range of recognized disabilities has grown, so too has assertiveness among employees with disabilities. Where at one time a worker might simply have self-selected out of a job that required accommodation, either by quitting or not applying for it in the first place, that worker is now more likely to demand accommodation.” (highlight by Jane Sleeth to reveal what many able bodied people and HR departments are really thinking about disabilities and accommodation)

The requirement to accommodate a disability is found in human rights legislation. The governing legislation is the Canadian Human Rights Act for workplaces under federal jurisdiction, and provincial Human Rights Codes for provincially-regulated employers. None of these statutes explicitly lays out a laundry list of conditions considered disabilities. And though wordings differ, the effect is that, in all provinces, discrimination is prohibited and employers must accommodate the needs of a disabled employee to the point of “undue hardship,” provided it does not put at risk health and safety at the workplace.

Because the governing law is human rights legislation, the prohibition against discrimination includes the hiring process. A worker cannot be denied employment, for instance, simply because a disability would require accommodation by an employer. A job applicant is not required to disclose a disability to a prospective employer. Probationary periods, which often purport to give employers the right to terminate without cause, offer no protection when an employee claims the employee has been discriminated against as a result of disability.

The key to meeting the duty to accommodate is that the effort be genuine and all-encompassing, with the proviso that it need not go beyond the threshold of undue hardship. Undue hardship is not a precisely defined term. There is no dollar figure attached to it, though cost is a factor. It will vary from workplace to workplace.

“The standard of undue hardship used to be that accommodation was almost impossible to provide,” says Richards. More recent case law has given employers some flexibility, but the bar remains very high. “In order for there to be undue hardship, an employer is going to have to provide significant evidence of either a prohibitive cost, a significant disruption to the business, or a health and safety risk,” he says.

Employers may even be required to act before an employee requests accommodation. Richards says that employers should be prepared to act and investigate further if an employee displays behaviour or performance issues that lead the employer to reasonably suspect the employee has a disability.

There’s disagreement on the degree of intervention required. In the case of a mental health issue, Jurgens says the employer must speak with the employee and offer accommodation. But Richards cautions against too aggressive an approach, particularly with an issue as sensitive as mental health. Employers should “make further inquiries” or make available the services of an Employee Assistance Program, he says.

Clearly, there are no cookie cutter solutions to accommodation. The logical starting point is to look at ways of accommodating the employee within the existing job, says Farah. If that is insufficient, the employer should look at redesigning the job, perhaps eliminating tasks that cannot be performed. Accommodation also includes offering suitable alternative employment within the workplace but, says Farah, it does not go so far as creating a meaningless job for the employee.

“An employer would have a really hard time claiming undue hardship when it comes to a psychiatric illness,” says Jurgens. In most cases, accommodations involve different ways of communicating, or perhaps flexibility in scheduling.

There are also plenty of resources available for employers seeking to accommodate workers with disabilities, says Farah.  Employers should not simply rely on medical opinions. “Medical professionals are very good at telling you what the limitations are,” says Farah. Involving work accommodation specialists may solve the problem, and their involvement will also be important for the employer should accommodation fail and termination be required.

When all attempts at genuine accommodation have been exhausted, it may be time to sever the employment relationship. Continuing the relationship burdens the employer with benefit costs, costs related to length of service and organizational costs within the workplace if the employee’s position must continue to remain available.

The principle of “frustration of contract” gives an employer a legal means to end the employer-employee relationship. “Frustration occurs when the employment contract cannot be performed as a result of an intervening event and through no fault of the employer or the employee,” says Richards. In an employment relationship, that usually involves an employee with no reasonable prospect of resuming employment in the foreseeable future.

The decision to invoke frustration and terminate employment is not to be taken lightly. “If you have someone who is on long-term disability, and you’re not sure what to do, you’d better get legal advice,” says Jurgens.

If the employee challenges the termination, the employer may face an onus to demonstrate that all efforts at accommodation were taken to the point of undue hardship, says Richards. This is a suggestion that emerged from a recent case (Naccarato v. Costco Wholesale Canada Ltd.), and it helps explain why the efforts at accommodation must be genuine and thorough.

Richards cautions employers to exercise care and show sensitivity when dealing with issues of disability in the workplace. Employees are trying to manage significant, unexpected, life-altering disruptions, while employers have a continuing responsibility to manage the disability benefits process. The opportunities for conflict are many, and the atmosphere between the two can quickly become poisoned.

“Employers have to actively manage individuals with disabilities, but they have to do it in a manner that is sensitive,” says Richards. “Employers need to take an active role, right from the start, because it’s not going to go away.”

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