Human Rights Series

Disability at the Workplace

In Ontario, workers with a disability have protections at the workplace.

Human rights laws that provide these protections include the Ontario Human Rights Code, the Accessibility for Ontarians with Disabilities Act, and human rights laws made by the Ontario Human Rights Tribunals and Ontario Courts.

Disability Includes:

  1. any degree of physical impairment or disability;
  2. any degree of mental impairment or disabilities;
  3. a learning disability;
  4. a mental disorder; or
  5. an injury or disability covered by the WSIB.

Disability includes a condition you have had for a very long time, or a new occurrence. It includes a condition that is temporary, or permanent. Disability includes substance addiction and alcoholism. The meaning of disability is broad.

Who is protected?

Generally speaking, the human rights laws only cover workers who are employees:

  • You can be a worker with widely fluctuating hours for a very short period of time, but still an employee or a dependent contractor; therefore, covered under the human rights umbrella.
  • On the other hand, you can be a third party independent supplier providing services for a very long period of time, and an independent contractor; therefore, not under the human rights umbrella.

As always, when in doubt, speak to your employment lawyer.

Notify your employer

If your disability affects your ability to work, or to do good work, you are entitled to be accommodated. To enjoy this entitlement, you have to first bring it to your employer's attention.

Your employer does not need to know detailed information about your disability. However, they need to know at least the following:

  • What are your limitations?
  • What kind of specific help do you need?
  • How long do you need the help for?
  • Are your limitations anticipated to last permanently?
  • If not, what is the expected time frame for recovery?

You may be required to provide medical information. If so, promptly talk to your medical doctor and get your employer the information they require. You have an obligation to do this.

If you are simultaneously applying to an insurance company for disability related benefits, you may be asked to provide information that is in duplication of what you are being asked by your employer to provide. The information required in the two process are not necessarily the same. Note that these are two entirely separate processes. Do not confuse the two.

Focus on what your employer is asking you regarding your abilities to work, and get that to your employer.

Accommodation at the workplace

Upon receiving the information, your employer must accommodate you, which may include:

  • giving you time off, paid or unpaid
  • changing your actual job
  • varying your hours
  • assigning extra bodies to help with your job
  • lessening your workload
  • modifying your duties and responsibilities
  • getting your special tools, equipment, or resources
  • and others

Whatever the case is, you have an obligation to be specific when communicating with your employer on what it is you need. You may be asked to provide the information through a medical note. If so, follow that. Have your doctor explain what it is you need, with specifics.

Ongoing accommodation and communication

These types of modifications can be temporary, for a short or fixed period of time. Or, they can be permanent (with the exception of time off. More often than not, it involves a period of trial and error, and with a series of different kinds of modification, followed by an arrangement that is more permanent. Not one solution fits all.

That means, keep the communication going. You have an obligation to update your employer with changes to your circumstances, to explain what is not working and what is, and to keep the dialogue open.

Limits to accommodation

As with all discrimination cases, the employer's duty to accommodation has a ceiling. When the accommodation causes the employer to suffer undue hardship, their obligation may end.

Undue hardship may be related to cost, budget, reputation, health and safety, and other reasons. Undue hardship means different things in different circumstances. There is no precise formula that pinpoints what it is.

In all cases, the employer must show that they have at least tried to accommodate. Generally speaking, there has to have a period of trial and error before the employer can claim undue hardship. For example, the employer cannot refuse to accommodate simply because they foresee that they will suffer undue hardship.

Violations of human rights

If you find that your disability is causing your employer to treat you differently, or poorly, speak up.

For there to be a human rights claim, your disability does not have to be the only reason for the different or poor treatment. It just has to be one of the reasons.

When speaking up, you do not have to speak to your direct boss or supervisor if that makes you feel very uncomfortable. You may speak with another manager, a peer or colleague, someone in HR, who can act as your advocate at the workplace.

If, however, you are unable to speak up at all, talk to your lawyer.

Your lawyer may help you navigate through these emotional and tough circumstances, and help you persevere at the workplace.

If that does not work, your lawyer will talk to you about whether you should file a human rights claim with the Court or Human Rights Tribunal, and get you what you are entitled to.

For other articles in the Human Rights Series:

Discrimination at the Workplace - Introduction

Family vs. Work

For discussion on Leave of Absence related to health or sickness:

Let's Talk About LEAVES - Part I. Maternity and Parental

Let's Talk About LEAVES - Part II. Sick Days (Ontario)

Let's Talk About LEAVES - Part III. Health Related Leaves (Ontario)

External Resources:

Ontario Human Rights Code

Accessibility for Ontarians with Disabilities Act

Ontario Human Rights Commission on Disability

Ontario Human Rights Tribunal