Disability and Grievances (Disability Issues)

To an  individual  with  a  disability,  the workplace can sometimes seem a  hostile place.  Yet   real  gains   have  been  made in   disability-related  employment law  in recent years, through new legislation, changes to existing statutes, and individual cases that have resulted in  groundbreaking decisions.

In  this column and elsewhere,  you may have read about how a member  with a disability can request a workplace accommodation. For the most part, that internal school board process is all that is required.  The board, working with the  member and the union, puts in place an accommodation plan.  It  is   sometimes a  lengthy  process, but typically   successful. On occasion, however, the parties disagree about some aspect of the process. In   that  case,  a  grievance   under the  collective agreement might be initiated.

Ultimately, this means that an arbitrator – an independent  adjudicator  –   decides.  Ontario’s LabourRelations Act  permits arbitrators  to apply and    interpret  employment-related  statutes, including  the   Human  Rights   Code.   The   Code defines what, in  the  legal  sense at  least,  con- stitutes a disability. As well, it  sets out how far an  employer  must go  in  order to  accommodate an  employee with  a  disability.  Employers  must accommodate  employees  with disabilities up to the  point of  “undue hardship,” a  legal concept that has evolved over time.

What sorts of  questions might an arbitrator decide? Here  are  a  few  examples, drawn from education  and  elsewhere.

• Do the circumstances of the individual requesting the accommodation fall within the legal definition of  disability?  There are many factors to consider. The definition in the Code is fairly broad.  As well, disabilities can be temporary,  or permanent, but they are still disabilities.
• Has the employer made a sufficient search to find an accommodation that is reasonable? It is not uncommon for arbitrators to send the employer back to the drawing  board to develop other options for  the employee.
• When, despite modifications to an existing job or a move to a different job, an employee is unable to fulfill the essential duties of a position, is the employer  required to continue the employment relationship?  What if there is a foreseeable prospect that the employee will be  able to carry out those duties in future?
• What are the employer’s obligations when faced with diminished job performance that is linked to a disability  such as substance  abuse or a mental health issue? Can the employee be fired?
• What happens when the employer ought reasonably to have known that disability may have been a factor in an employee’s job performance,  but the employee chose not to disclose the disability?
• Should an employer’s attendance  management program be applied to an individual with a disability in the same  way as it is applied to everyone else?

While  these  can  be  difficult  questions to resolve on  a  case-by-case basis,  continuing to address them is part  of what moves the quest for workplace rights forward. While advocacy happens in many different ways, the grievance process will always be key.