Tap Into EmployAbility Conference

October 3, 2003Mark H. Mason

Tap Into EmployAbility

Overview

• Legal Issues• Practical Issues

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Human Rights Code

• Provides protection to enumerated groups of persons in employment to eliminate discrimination and harassment

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Social Standards of the HRC

1. Service2. Employment

• all aspects including pre-employment

3. Protected Grounds• disability (handicap or perceived

handicap) is one of 14 grounds

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Social Standards of the HRC

4. Exceptions:a) BFOR:

• impression is not enough• statistics and scientific evidence

b) Accommodation: • you must try and try again!

c) Undue Hardship:• high standard

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Duty to Accommodate – s. 17(2)• “… shall not find a person incapable

unless it is satisfied that the needs of the person cannot be accommodated without undue hardship … considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”

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Accommodation Principles

• Process of assessing accommodation is important

• Possibilities may include:• Own job with modification• Other available job

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Some Limits on the Duty to Accommodate

• Accommodate the handicap, not the inability

• No obligation to create an unproductive job

• Displacement of other employees

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Common Fears

• High cost of accommodation• Lack of employee productivity• Rising Insurance Rates• Increased risk of accidents

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Barriers to Employment

a) Physical barriers: • building structure • communications

b) Attitudinal barriers: • beliefs and assumptions

c) Systemic barriers: • hard to identify

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Hiring Considerations

• Swim in the deep end of the pool as well

• Give all applicants an equal opportunity to apply

• Re-think your regular recruiting activities

• Encourage applications

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Selection of Candidates

• Ability to perform the essential duties of the job

• Ask each candidate the same questions

• Ensure testing measures the skills and abilities needed in the workplace

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Selection of Candidates

• Accommodation during the application process:a) application form

b) format of testing materials

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Once a Candidate is Selected• Employers right to expect

essential duties of the job to be performed

• Accommodation starts with the employee

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Request for Accommodation

• Relax and breath!• Treat the matter seriously• Assess the employee’s needs and

try to accommodate those needs• Individualized process• Undue hardship

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Undue Hardship

• Costs – must be quantifiable• Health and safety requirements• Is the standard now

“impossibility”?• Unacceptable undue hardship

arguments

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Performance Management

• What is the standard of performance which may be expected?

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Performance Management

• Entitled to hold all workers to the same standard of performance

• Entitled to evaluate all employees using the same performance criteria

• Qualifier – subject only to required accommodations

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Performance Management

• What can you discipline and/or terminate an employee for if that person has a disability?

• Anything for which you would otherwise discipline and/or terminate an employee who does not have a disability subject to accommodation

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Performance Management

• Ensure the following:a) The decision is not based on the disabilityb) Discipline/termination is applied consistentlyc) Discipline/termination is in accordance with policies

Tap Into EmployAbility Conference

October 3, 2003Mark H. Mason