Unseen Disabilities: What is an invisible disability?

While the presence of certain disabilities is easily identifiable, such as when a person makes use of a wheelchair, seeing eye dog, or prosthetic limb, other disabilities are not so obviously apparent. Such disabilities may involve a cognitive, intellectual, developmental, or sensory condition that affects a person’s behaviour, abilities, activities or senses. Some examples of invisible disabilities include: ADHD, GI diseases, arthritis, brain injuries, chronic pain, mental illness, and addiction.

Challenges of accommodating invisible disabilities

The greatest challenge for employers when it comes to accommodating unseen disabilities is, naturally, their invisibility. Without the ability to see what barriers or challenges need to be addressed, it can be difficult or impossible for an employer to know about an employee’s need for accommodation if the employee does not tell them about it.

So why might an employee choose not to disclose their disability?

Among other reasons why an employee might not disclose their invisible disability are fears of being stigmatized, invalidated or discriminated against. They may worry that their employer or fellow employees will not be understanding of their requests for accommodation. They may be worried that their coworkers will think they are just being difficult, lazy or choosy about their working arrangements.

The best way to counter these worries is to create a workplace atmosphere of inclusion and support through both policies and procedures.

Canadian Pacific Railway v. Teamsters Canada Rail Conference

The case of Canadian Pacific Railway v. Teamsters Canada Rail Conference serves as an example of the extent of an employer’s responsibility to accommodate an employee’s invisible disability, even if they are unaware of it.

In this case, a Canadian Pacific Railway locomotive engineer was found responsible for causing the collision of a train he was driving and to have been drinking hard liquor at the time of the accident. The engineer was criminally charged by the RCMP and prohibited from operating a vehicle for two years. Following the accident, the engineer was terminated for just cause according to Canadian Pacific’s substance use policy.

However, after his termination, the engineer was diagnosed with alcohol use disorder and PTSD. He expressed remorse for his actions and their consequences and began attending addictions treatment. He sought to be reinstated with Canadian Pacific.

At arbitration, the arbitrator ruled that the engineer had experienced prima facie discrimination as alcohol addiction is considered a disability under the Canadian Human Rights Act (CHRA) and he had been terminated because of this addiction.

It did not matter that he had not disclosed this addiction and that Canadian Pacific was unaware of it before the investigation. The arbitrator ordered that the engineer be reinstated to his previous position once he had recovered and was fit to work. However, he would also be subject to undergo periodic alcohol and drug testing for two years. Furthermore, Canadian Pacific would have to accommodate him with a position that was not safety-sensitive until he was once again permitted to operate a vehicle.

Accommodating Invisible Disabilities

When it comes to accommodating invisible disabilities, employers should accommodate them in the same way they would any other disability: to the point of undue hardship.

Employers should work with employees to find appropriate accommodations. Working with your employee does not entitle you to know the exact details of their disability. You should always be sensitive to their privacy when figuring out a plan of accommodation.

Some examples of accommodations an employee with an invisible disability might need include:

• office improvements to ergonomics
• modified work schedules
• extra training (for individuals with learning differences or disabilities)

Essential to successful accommodation of employees with disabilities both seen and unseen is a positive attitude and understanding on the part of the employer and the entire workplace.

Takeaway for employers

Even if it seems like there is just cause for dismissal, investigate to make sure there is not an underlying disability like addiction and then accommodate to the point of undue hardship if there is. An undiagnosed substance dependence can be considered a disability and therefore a protected ground under the CHRA.

What’s more, you should always approach accommodation with grace and compassion. Getting it right can take time and trial and error but it is absolutely necessary to foster working environments and opportunities where everyone can thrive and achieve their full potential.

For more information about developing workplace accommodation policies, contact KCY at LAW today to book your consultation at 905-639-0999 or connect with us online by filling out a consultation request form.