Tap Into EmployAbility Conference

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Tap Into EmployAbility Conference

• October 3, 2003
• Mark H. Mason

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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. Service
• 2. 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 employees 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 disability
• b) Discipline/termination is applied
  consistently
• c) Discipline/termination is in accordance with
  policies

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Tap Into EmployAbility Conference

• October 3, 2003
• Mark H. Mason