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Ontario Federation of Labour

Getting the Tools We Need - Accommodation and Disability Rights and Responsibilities

15-16 November 2002

Jody Nyasha Warner, YUFA's Equity Officer, reports on her attendance at the OFL conference Getting the Tools We Need - Accommodation and Disability Rights and Responsibilities

The Ontario Federation of Labour's Getting the Tools We Need - Accommodation and Disability Rights and Responsibilities conference was a timely one as recent changes to the Ontarians with Disabilities Act have provoked much debate and strengthened human rights protections for people with disabilities. The highlight of the conference for me was Michael Lynk's keynote speech. Lynk, a well known Human Rights / Labour lawyer and Arbitrator gave an informative description of disability rights at workplaces.

Lynx began by pointing out that disability is a unique human rights issue because unlike race or gender it is not a fixed state of being. It's very fluidity, and the wide variety of states it refers to, mean that it can affect anyone, regardless of social class, race, gender, sexual orientation or other identities, at any time. According to Statistics Canada currently 17% of all Canadians have a disability of some kind. However this number is likely on the small side given the continuing social stigma associated with declaring a disability.

Discrimination based on disability is the most common type of complaint (1 in 3) received by the Human Rights Commission. Of these, employment related complaints make up the largest pool. There have been numerous studies documenting discrimination people with disabilities face in employment, Lynx noted that university graduates with disabilities are twice as likely to be unemployed despite their qualifications and that on average they make 20-25% less then their non-disabled counterparts. The kinds of barriers people with disabilities face at work are wide ranging including physical, administrative and attitudinal barriers.

The good news is that changes to the law and recent grievance settlements have by and large been favourable for people with disabilities. Since conflicts about disability between employer and employee are so wide ranging and case specific overarching protections are needed. Lynk's stressed that the law is very clear in stating that employers must accommodate workers with disabilities up to the point of undue hardship. Undue hardships are most often reported as cost and / or safety concerns however the "undue hardship" bar is set very high. For instance, past cases have ruled that where there is a clash between safety standards and a need for accommodation employers need to allow for minimal or reasonable risk. In one case a nurse who suffered from depression had given out incorrect medication on a few occasions. The employer was required to retain her in her current job and draw up a plan whereby the nurse's colleagues took over medicine giving during periods of obvious depression. Another case which Lynx shared involved a truck driver who had suffered a series of strokes resulting in loss of peripheral vision. In this case the trucking company had a minimum peripheral vision standard which the driver did not pass. The driver proposed wearing special mirrors on his glasses to improve his range of vision and the employer had to accept this accommodation. In yet another case a nurse suffered a back injury which meant she could only lift 5 pounds. The employer tried to make the case that the job description included being able to lift at least 60 pounds. But the courts ruled that the division of labour in the department could be rearranged so that a full time "lightweight" duty job was created for the nurse in question.

Lynk's talk underscored employer's responsibility to consider all reasonable alternatives in integrating people with disabilities at work. Specifically employer's are required to take a four step test to determine

  1. if the employee can perform his/her existing job as is
  2. if the employee cannot determine if he/she can perform his/her existing job in a modified or "re-bundled" form
  3. if the employee cannot determine if he/she can perform another job in its existing form
  4. if the employee cannot, then determine if he/she can perform another job in a modified or "re-bundled" form. It seems to me that the concept of accommodation requires employer's to think creatively about the range of possibilities for organizing work at their institutions / companies.[1]

This approach to accommodations begins with the logic that a person with disabilities is both different and worthy and that workplaces need to change, institutionally change, the way they are organized in order to be inclusive. Providing accommodations sometimes results in a transformation of the workplace that benefits all workers. A speaker from the United Food and Commercial Workers noted that the design of cash machines at Loblaws gave worker's the 2nd highest rate of carpal tunnel syndrome in the industry. The union won an accommodation that included a (costly) redesign of all cash machines which resulted in a drop to having the 2nd lowest incidence of carpal tunnel syndrome. Overall the clear and strong political work the disability rights movement has engaged in is impressive. The accommodation framework provides an interesting inspiration for reimagining our workplaces in regards to gender, race, age and sexual orientation as well. 

Note

[1] Lynk, Michael. Disability and the Duty to Accommodate in the Canadian Workplace. Paper given at the OFL Getting the Tools We Need - Accommodation and Disability Rights and Responsibilities conference, 2002 November 15th-16th Toronto, Canada. P.2.