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    • 16 JAN 19
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    Disability: What You Need to Know About the Law of Accommodation

    Disability: What You Need to Know About the Law of Accommodation

    This piece was originally published in our the FSA Voice (October 2018 edition). 

    Many of us are going to experience a disabling medical condition, even if it is just transitory. When that happens, the law protects us at work.

    The duty to accommodate is a doctrine fashioned by the courts in their development of constitutional and statutory human rights law. It protects disabled workers’ rights to dignity and equality, and encourages the integration of the disabled into the workplace where possible. The law in this area can, if necessary, override collective agreement provisions, union jurisdictional lines, and employer policies and practices. This, though, is not common. Usually disabled employees are accommodated within the existing formal structures at work.

    Employers, says the Supreme Court of Canada, are required to make all attempts short of “undue hardship” to reintegrate disabled employees, regardless of whether the medical concern is mental or physical. What does “undue hardship” mean? There is no easy answer. An institution like BCIT—with significant size and resources—is likely going to have to go much further in meeting the duty to accommodate than, say, a neighborhood’s grocery store owned and run by a family. The Institute, for example, may have the resources to alter job duties, moving tasks around within a department, reduce an employee’s hours, or alter buildings, computers, or equipment to make them accessible. A small family-run store may not have the capacity to go as far.

    Did you know that BCIT has recently hired a Disability Management Specialist in their Human Resources department? The FSA looks forward to working with them toward providing the Institute a more structured approach to the management of disability.

    The legal obligation to accommodate disabled workers is not strictly borne by BCIT alone, though they own the lion’s share. It’s a broad requirement placing obligations on the union, the employee asking for an accommodation (who must share relevant information regarding their medical restrictions with BCIT), and ultimately their coworkers as employees of BCIT.

    Co-workers need to be sensitive to the changing work environment when a colleague is accommodated. In many cases, an employee may not wish to reveal the existence of a disability, and there is no obligation to do so. Instead, co-workers may see a colleague return from a leave of absence and working fewer hours. These changes may be temporary if it is a condition that may improve over time or permanent if it is not. Colleagues may see no other outward signs that an accommodation is happening.

    Unexplained or new changes in the work environment can produce interpersonal tension. Sometimes at the FSA, we see members who should be treated respectfully being alienated by those who are not aware an accommodation is occurring or do not wish to adjust to changes made to support a disabled member. Gossiping, alienating, or lobbying the disabled employee to take up more work have occurred. In one case, employees asked an FSA member to give up office space, which was provided specifically to accommodate an undisclosed medical condition.

    These behaviours may lead to allegations of harassment and discrimination and ultimately to discipline, including termination for the most serious or chronic of cases. The FSA encourages members that have concerns about changing work conditions revolving around one employee to speak to their manager or contact us.

    Increasing workload is a common concern amongst coworkers when a disabled employee is accommodated. However, the Institute has the resources to backfill for absent employees or those working reduced hours. Other mechanisms exist to reallocate workload or delay projects. Anyone experiencing an untenable increase in workload should speak to their manager, and consider use of a workload dispute in Articles 8.8 or 8.9. The FSA can assist with this. Members should exercise caution: personal attempts to shift work on to a colleague or lobby members to take on more work than they were assigned, may run afoul of an employee’s human rights.

    Disabled individuals need not share their medical conditions or the measures taken to accommodate them. This gap in information may leave questions about why these individuals are exhibiting difficult or unusual behaviours. The FSA encourages all members to support their coworkers by charitably assuming the best intentions when colleagues appear to be struggling with work or co-workers.

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