Hiring and Managing Employees with Disabilities

By Joe Issid
Monster Contributing Writer

In Canada, the Employment Equity Act strives to ensure that all Canadians have the same access to the labour market. Specifically, the act seeks to ensure the full representation of four designated groups within labour organisations: women, Aboriginal peoples, visible minorities and people with disabilities. As an employer, you need to be aware of these provisions when looking to make any hiring decisions within your organisation. Of these four designated groups, it can often be most difficult to identify candidates with disabilities as they can often be hidden and candidates are under no obligation to reveal their disability. However, should a candidate or employee reveal to you that they have a disability; you need to make sure that you respond appropriately.

As mentioned, an employee is under no obligation to inform you of any disabilities. However, if they choose to disclose a condition that may impact their performance of the safety of their colleagues, you need to respond accordingly. If employee safety is a concern (due to a communicable illness, for example), you need to ensure that your staff is aware. With other forms of disability, it is best to observe the privacy wishes of the employee in question. When dealing with these types of situations, it is always best to encourage written communications so as to ensure that no misunderstandings occur and that all such discussions can be revisited if necessary.
 

If the disability does not impact the safety or performance of other employees, it is a good practice to keep this information private. Despite our best efforts to remain equitable and professional, discrimination can exist in many forms. Needless to say, you do not want to needlessly expose any member of your organisation to any form of discrimination.
 

As an employer, your obligation is to reasonably accommodate the needs of disabled employees to ensure that they are able to perform their work. However, this does not suggest that the employer is obligated to change the fundamental conditions of employment. In 2008, the Supreme Court of Canada clarified this as follows: “…an employer does not have a duty to change working conditions in a fundamental way to accommodate an employee, but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties in a manner that will enable the employee to do his or her work.” (H Scott MacDonald, Employer’s Duty to Accommodate an Employee’s Disability: When does it end?)
 

With degenerative disabilities (MS, for example), it may be a good idea to schedule updates with the employee to evaluate how they are performing and if their capacities are changing. It is incumbent upon you to ensure that they are continually able to perform their work and that their changing needs are being accommodated. In the event that their disability becomes a cause of contract frustration, it is best that you are able to demonstrate a conscientious and repeated effort to address the needs of your staff.
 

The unfortunate reality is that some employees with disabilities will no longer be able to satisfy the terms of their employment contract. As Mr. McDonald states, “…the duty to accommodate continues so long as the employment relationship continues.  When that relationship breaks down, an employee who feels that an employer hasn't sufficiently accommodated the employee's disability, may argue that the effect of the failure to accommodate, amounts to a constructive dismissal.  The employer, on the other hand, may argue that there is nothing further which can be done to accommodate the illness or disability and the employment relationship has come to an end because the contract has been frustrated.”
 

As with any situation that involves employment equity, the advice of an employment or legal specialist is encouraged before any decisions can be made. Make sure that you are not violating the rights of your employees and that all parties are fully informed of any changes to employment conditions or status. As an equitable employer, you are obligated to provide a safe and non-discriminatory workplace, to both able and disabled employees.

If you have any questions or feedback about this article, feel free to reach out to Joe Issid at: joe@thescrib.com