Policy and process
If your company doesn’t have a policy in place it might be time to consult with a lawyer to develop one. Having a robust disability policy ensures a smoother, faster process, and means managers and employees know what to expect. Also, if things go badly and it ends up in court or in front of a Human Rights Tribunal, being able to show you followed a process will strengthen your company’s case
“Having a policy like this in place could also contribute to company morale because employees feel confident that if they got sick or needed restrictions the company would handle it appropriately,” Rabinovitch added. “And employees will knows steps they need to take such as who to tell and what information to have ready.”
It’s hardship, but is it undue?
An employer has the obligation to accommodate to the point of “undue hardship”, which prompts the question: What is undue hardship?
Courts in Canada have used “proportionality approach”, which requires an employer show there would be an excessive or disproportionately severe degree of harm caused to the company if they were required to implement that accommodation.
Things like an impact on financial losses or workplace morale can qualify, and it would apply for smaller companies sooner because accommodations requiring them to hire additional staff are more likely to affect their bottom line. A large company such as a national retail store or telecom company is going to have a more difficult time proving undue hardship.
Document document document
Like any HR issue, keeping good records is key. By recording all the accommodations that
“From the day the employee comes in with information about their disability the employer should document the accommodations that were offered and rejected, any discussion with doctors,” Rabinovitch said. “That’s how an employer can build their case if it does end up in court.”
Rabinovitch will be speaking at Devry's annual seminar on May 28 on the topic "WSIB Claims: An Overview and Tips for Employers".
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