Invisible Disabilities

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.

Part-time Benefits for Part-Time Employees

Accommodation can be a difficult process to navigate. Determining the appropriate compensation based on an employee’s accommodation can be especially challenging, particularly if an employee is being accommodated with a different position and/or fewer hours than what there employment contract set out.

The recent case of City of Toronto v. Canadian Union of Public Employees, Local 79 highlights the challenges of balancing compensation with accommodation.

In this case, a full-time employee’s disability was accommodated with part-time work. To the employee’s frustration, their new part-time hours were paired with part-time benefits in line with all other part-time workers for the company.

When the situation was brought before an arbitrator, the arbitrator determined that it was a breach of the Ontario Human Rights Code (OHRC) to provide part-time benefits to an employee who normally worked full-time but was working part-time as an accommodation. However, the employer argued that they were merely paying the employee for the work they were actually doing and this required them to adjust their benefits package.

The Ontario Divisional Court (ODC) reviewed the arbitrator’s decision and determined that the it was unreasonable and that the grievance should be dismissed. The ODC clarified that employers do not owe a part-time worker full time benefits even if the reason for their part-time employment was an accommodation for a disability. The ODC concluded that the employee’s different treatment was based on a different level of work and not their disability and was therefore acceptable under the OHRC.

Takeaway for employers

You should never discriminate against an employee because of their disability. It is your duty to accommodate to the point of undue hardship so that all your workers can thrive and work to their fullest potential. However, employees also have to work for their compensation. A reduction of work hours or job responsibilities may lead to a justified reduction in salary, benefits or other compensation.

Nevertheless, you should be extremely careful when adjusting terms of employment and compensation as part of an accommodation. Be sure to consult with an experienced employment lawyer before making any changes to an employee’s. They can guide you through the process and ensure that you are not in breech of the OHRC and that your policies create a respectful and equitable workplace.

For legal advice and assistance with your rights as a part-time employer or as a part-time employee, Call KCY at LAW today to book your consultation at 905-639-0999 or connect with us online by filling out a consultation request form.

Bereavement Leave in Canada

Click here to read our new 2019 Bereavement Leave Article
I’m so sorry for your loss. I suspect that, if you’ve clicked on this piece it’s because you have recently lost someone. While the amount of comfort I can offer you here is quite limited, I hope that I can give you the information you need to ensure you get the time to grieve and surround yourself with the supportive people in your life.

Bereavement Leave under the Employment Standards Act

Unfortunately, there is no statutory entitlement to paid bereavement leave under the Employment Standards Act (ESA).

However, if you work for an employer who regularly employs 50 or more people, you are entitled to up to 10 days of unpaid personal emergency leave each calendar year. You may use this personal emergency leave as a bereavement leave for the death of an immediate family member including:

  • your spouse
  • your brother or sister
  • you or your spouse’s parent, step-parent or foster parent
  • you or your spouse’s grandparent or step-grandparent
  • you or your spouse’s child, step-child or foster child
  • you or your spouse’s grandchild or step-grandchild
  • your child’s spouse
  • your dependant relative

Though death is usually unpredictable, as with all leaves of absence, you must notify your employer of your intended absence as soon as you can. You should also note that a half-day taken off will count as a whole day of leave.

Evidence To Justify Leave

“evidence reasonable in the circumstances”

A point that sometimes causes confusion is an employer’s right to ask for evidence to justify an employee’s leave. In this regard, the ESA states:

“an employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.”

While there is no guidance in the law for as to what exactly reasonable in the circumstances means, as with most pieces of employment legislation, the aim of the law is to balance the rights and interests of both the employer and the employee. What is reasonable will depend on the situation: length of leave requested, frequency of such absences, cost of absence to employer etc. So, for example, there is probably no need to ask an employee for proof of a relative’s death if they are taking a single day off; your employee’s word in this situation should be adequate evidence.

Bereavement Leave under the Canada Labour Code

Unlike employees governed by the ESA, employees under federal jurisdiction are entitled to paid bereavement leave under the Canada Labour Code.

Under the Code, you are entitled to up to three days paid bereavement leave if you have been employed with a company or organization for three consecutive months. If you haven’t been employed this long, you are still entitled to three days’ leave but this time will be unpaid. You are entitled to leave on any working day within the three-day period immediately following your relative’s death.

Bereavement Leave for Family Members

Family members for whose death you are entitled to take bereavement leave include:

  • your spouse
  • you or your spouse’s parent or this parent’s spouse
  • you or your spouse’s child
  • your brother or sister
  • your grandparent
  • any relative with whom you permanently reside

The three days of leave only apply to regular working days. For example, if your family member dies on Saturday, you would only be entitled to Monday and Tuesday off. Additionally, these leave provisions don’t apply if you are party to a collective agreement.

Bereavement Leave Legal Experts

If you have questions concerning your bereavement leave entitlements then we can help you. Get in touch with the experienced employment law team at KCY at LAW by calling (905) 639-0999 or contact us to find out more.