Disability

Questions in this section (click on section):

35. What constitutes a disability for the purposes of accommodation?
36. How long does an employer have to accommodate an employee who is absent from work due to a disability?
37. Does an employer have to accommodate applicants and employees who do not meet language proficiency standards?
38. How far does an employer have to go to accommodate childcare and eldercare?

 
35. What constitutes a disability for the purposes of accommodation?

A disability is a physical or mental condition that is both:

• permanent, ongoing, episodic or of some persistence, and;
• a substantial or significant limit on that person’s ability to carry out some of life's important functions or activities, such as employment.

Disabilities include both visible disabilities, such as the need for wheelchairs, and invisible disabilities, such as cognitive, behavioural or learning disabilities.
 
36. How long does an employer have to accommodate an employee who is absent from work due to a disability?

An employee’s disability can lead to extended absences from work, which may be an undue hardship for the employer. Each case needs to be considered individually.¹⁷ Case law has not established a time limit or time formula for determining when a disability-related absence becomes an undue hardship. Here are some ways in which an extended absence can create an undue hardship.

• The employer may be unable to attract or retain persons qualified for the position because it is not being offered permanently.
• The cost of paying an employee’s benefits while that person is not working may become an undue hardship.
• The employee’s skills may become outdated.
• A new business focus or approach may no longer require the employee’s skill.

Undue hardship due to absence is determined case by case. At some point, absenteeism will breach the employment contract, as the employer is unable to benefit from the contract.¹⁸

The employer does not have to accommodate the absence of an employee with a disability if the absence is unrelated to the disability or to any other ground protected by the Canadian Human Rights Act. That situation would be a disciplinary matter that needs to be handled under the applicable collective agreement and the terms and conditions of employment or the Canada Labour Code.

¹⁷ See, AirBC Ltd and Canadian Airline Dispatchers Association, (1995) 50 L.A.C. (4th) 93 McPhillips).
¹⁸ See, AirBC Ltd and Canadian Airline Dispatchers Association, (1995) 50 L.A.C. (4th) 93 McPhillips).

Race, Colour, Ancestry and National or Ethnic origin

37. Does an employer have to accommodate applicants and employees who do not meet language proficiency standards?

Employers are not required to accommodate applicants and employees who cannot meet language proficiency standards.

These standards should meet the requirements for a bona fide occupational requirement.

In situations where language proficiency standards are not closely related to job requirements, however, such standards may be a pretext for not recruiting or promoting persons based on their race, ancestry or place of origin. Similarly non-specific references to “an insufficient command of a language” or “speaking with an accent” can lead unsuccessful applicants to conclude that the decision was based on race, colour, ancestry or place of origin.¹⁹

¹⁹ Fletcher Challenge Canada Ltd. v. B.C. (Council of Human Rights) and Grewal, ( 1992) 18 CHRR D/422 B.C.S.C.) and Clau v. Uniglobe Pacific Travel Ltd, (1995) 23 CHRR D/515 (B.C.C.H.R.)

Family Status

38. How far does an employer have to go to accommodate childcare and eldercare?

Employers have the same responsibility to accommodate an employee’s family status as they do for other protected characteristics, such as disability or religion. This means that employers have must accommodate employees who are differentially affected by workplace standards, policies or practices because of their family status. Responsibilities that flow from same-sex relationships are protected as “family status” in the Act.

Examples of accommodation based on family status include:

• allowing for an extension of a maternity or parental leave;
• allowing for leave to care for sick family members;
• allowing for alternative work arrangements, such as compressed hours, job sharing, part-time work, flexible hours and flexible place of work arrangements;
• not penalizing employees who cannot accept overtime work because of special needs relating to family status;
• adapting work and service procedures to reflect the diversity of family configurations; and
• providing suitable options to allow for breast feeding as required.

The employer’s must accommodate an employee’s family status requests up to the point of undue hardship.

The employer’s responsibility to accommodate an employee based on family status will be affected by how the employee shoulders the family responsibility. For example, a single mother is probably the only person who can care for a child too sick to go to school.²⁰

Employers do not have to provide paid leave to employees who need to be away from the workplace during regular working hours, unless paid leave is provided for similar matters unrelated to family status.

²⁰ Brown v. M.N.R., Customs and Excise, (1993), 19 CHRR D/39 (C.H.R.T.)