Employers have a duty to accommodate their employees as set out in Ontario’s Human Rights Code, 1990 (“Code”). The Code prohibits employers from discriminating against employees based on various grounds, including disability. The Code further defines “disability” broadly which will include employees with invisible disabilities.
What are invisible disabilities?
Invisible disabilities are disabilities that are not obvious when interacting with an individual. Further, how the invisible disability affects the individual may not be consistent. Invisible disabilities may hinder an individual’s learning, memory, behaviour and/or ability to perform certain physical tasks. Attention Deficit Hyperactivity Disorder (ADHD), epilepsy, chronic fatigue syndrome, multiple sclerosis, Crohn’s disease, rheumatoid arthritis, endometriosis, lupus, diabetes, chronic migraines, dyslexia, autism, anxiety and depression, are all considered to be “invisible” disabilities. There are others.
Generally, individuals with “invisible” disabilities will have specific situations or certain triggers that make them more prone to have an increase in impairments related to their disability. For instance, with respect to individuals who suffer from migraines, common workplace triggers are artificial lights (like bright office lighting or fluorescent lights), loud noises (like from an office machine), strong scents (like from office cleaning supplies), dehydration (like from not taking enough water breaks during a work shift) or poor posture (like from uncomfortable desks or workstation set ups).
Employees with disabilities may find it difficult to disclose their disabilities because they are concerned about stigmatization.
Accommodating Employees with Invisible Disabilities
The Code sets out that employers must reasonably accommodate employees with invisible disabilities so that they can fully participate in the workplace. This means that the employer should make adjustments to things like the workspace in which the employee performs their job duties, the job duties the employee is expected to undertake and perform, changes to certain workplace polices or programs, etc. For instance, to use again the example of an employee who suffers from migraines, changing the lighting or workstation set up, minimizing noise or allowing more water breaks are common changes that an employer would implement to accommodate an employee who suffers from migraines.
The employer’s legal obligation to accommodate their employee continues until the point of undue hardship. What is considered undue hardship is a fact dependant analysis, however, the analysis is specifically limited to cost, outside sources or funding, if any, and health and safety requirements, if any. This means that the employer will have to assess the circumstances within the above parameters to determine what constitutes undue hardship in the context of the specific business organization having regard to its size, nature of the workplace, etc.
Accommodation can take a variety of different forms. For example, an employer may change an employee’s work schedule, job tasks, offer an increase in time to complete a task, may offer additional training, may change the arrangement of the workspace, may offer certain devices or technology. However, in cases of invisible disabilities, the specific accommodation needed to an employee will match the individuals specific need level.
How can Zeilikman Law help?
Accommodating invisible disabilities is a common issue in a lot of workplaces. It is very important to learn how to address these issues whether you are an employee or employer. Further, navigating these issues can be complex and worrying for either party, so it is best to approach an employment lawyer for advice on how to tackle these issues.
The challenge that lies at the centre of these issues is the duty of the employer to accommodate employees who have invisible disabilities to the point of undue hardship. Both employers and employees need specific advice to help them figure out what appropriate steps to take to reach a positive resolution.
Zeilikman Law has helped both employers and employees to accommodate invisible disabilities in the workplace by providing legal advice, preparing various policies, correspondence or other documentation, helping to negotiate a resolution to these issues, etc.
