The Arthritis NewsletterFall 2011
Workplace "Accommodation": What Is It and How Does It Apply?
You’re a working person who suddenly finds that you have arthritis. At first, you may deny that the condition is impairing or interfering with your performance on the job (and perhaps in the early phases of the disease that may be the case) but as the disease progresses, you find yourself having more and more difficulty discharging your primary responsibilities. Fatigue assails you; your pain levels rise inexorably; your joints are angry and inflamed. What can you do? You need to work. You have responsibilities to yourself and your family. As well, you didn’t check your career expectations and ambitions at the door to your rheumatologist’s office. You have always been an achiever who takes pride in being a competent contributor to your workplace. How do you square this circle?
The difficulty in reconciling your disease with the demands of your working life is often greatly compounded for many people with arthritis because there is very little public awareness about arthritis disease and its systemic impacts on the mind and body. Isn’t arthritis just something to worry about when you’re old and creaky and ready to retire? That’s still the prevailing image. But you’re a very long way from checking out living conditions at the “Shady Acres Home for Retired Persons”. No, you are most definitely not ready for the glue factory, but at the same time, your disease makes demands upon you that you simply must respond to intelligently – and in many cases if you fail to do so, you may hasten, rather than slow the progression of your disease and speed the day when you may be unable to work at all.
Good Communication is Vital:
Assuming the time has arrived when you may have to seek some form of “workplace accommodation”, what steps should you follow and what can you expect? First, clearly define your needs. Then support your request with evidence or information from your doctor or health care provider as to your limitations (don’t hesitate to seek professional advice or peer-provided information from arthritis patient groups or from the Arthritis Society on any particular points you feel you need to clarify). You may have to request extra sick leave or some extra time off, an adjustment to your daily or weekly schedule, changes in your work duties, or you may need to secure certain ergonomic modifications in your workplace. If you foresee a need to be absent from work, detail how long the absence is likely to be and whether there may be possibilities of prolongation beyond what is known. You may wish to explore the possibility of working from home – if that is something that is feasible in your job. These sorts of requests are usually considered “reasonable” in most circumstances and most types of employment, but bear in mind that no one size fits all.
Some primary concepts:
Human rights law plays an increasingly important role in the Canadian workplace. A question that often arises in the context of employment is whether there is a duty incumbent upon employers to accommodate the needs or limitations of an employee with a health or disability problem and if so what its scope may be?
First, what is a disability? In a nutshell, it is a significant impairment that interferes with normal functioning. It can be partial or it can be total. Most often when a workplace accommodation is sought, the impairment is partial or of limited duration. The test of total disability is satisfied when the circumstances are such that a reasonable person would recognize that they should not engage in certain activity, even though they literally are not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the person’s impairments are such that common care and prudence require them to desist from their business or occupation in order to effectuate a significant improvement; hence, if the condition of the employee is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies. This may arise in arthritis when surgical interventions or certain associated co-morbidities are present.
In Canada, the legal source of the employer’s responsibility to “reasonably accommodate” is found within human rights statutes, both federal and provincial, which prohibit discrimination over a comprehensive set of grounds. These can range from religion to mental and physical disabilities. In the arthritis context, the latter two grounds can have particular application.
What is “Reasonable”?
It should be kept in mind that Canadian human rights statutes most often do not explicitly create a duty of reasonable accommodation, even though they include provisions that define a general right to non-discrimination in employment. In other words, the foundation stone underlying Canadian human rights statutes is the intent to prohibit unfair and arbitrary discrimination, whether it be racial, religious, or related to an employee’s physical or mental disability. Confused? Put another way, the legal “duty to accommodate” can really more accurately be described as a “duty to avoid unreasonable discrimination” but the line between both situations is rather blurry. The key words to remember here are reasonable accommodation, with the emphasis on reasonable. Clearly, for example, it would not be reasonable for a person with severely impaired vision to demand the right to operate an aircraft. That is why the Canadian Supreme Court has ruled that an employer has the right to establish specific conditions and requirements of employment, provided such conditions:
- are rationally connected to the job,
- were originally established in an honest and open expression of good faith, as necessary to fulfill a legitimate work-related purpose, and that,
- any accommodation requested by an employee not be such as to impose undue hardship on the employer.
In short, when requesting that an employer make accommodation for your arthritis-induced limitations, your legal underpinning is the elimination of unfair discrimination in the labour market. You are really asking that inescapable differences between yourself and the employee who enjoys unimpeded health not constitute unreasonable barriers to your full and equitable participation in the workforce.
Disability is also given a broad meaning in Canadian statutory definitions and in case law. In contrast to the United States, disability in Canada can include addiction to a drug (even an illegal one) and covers employees who are current users of drugs provided they can show that they have a mental or physical disability caused by the use of such drugs.
In assessing what will amount to undue hardship in a particular case, the Supreme Court has held that factors such as the cost of a possible accommodation method, its effect on the morale and mobility of other employees, possible interference with other employees’ rights, disruption of a collective agreement and interchangeability of facilities may all be considered. The court has noted, moreover, that these factors are not entrenched, must be applied with common sense and flexibility, and that this list is not a closed one.
In general, case law and human rights statutes in Canada are evolving in positive directions and increasingly are broadly supportive of a “duty” by employers to “accommodate” disabilities and health impairments among employees. But getting and surviving arthritis is tough and working people have to be determined and proactive when meeting many daunting challenges of arthritis disease within the workplace environment. Be positive. Remember: you wouldn’t be employed if you weren’t viewed as an asset by your employer. And remember: when and if you seek effective ways to deal with the disease within your employment by seeking accommodation, you’re not being self-indulgent and you’re not seeking privileges, but you are instead actively looking for ways that will allow you to remain productive and useful.
When it comes to arthritis and the workplace, a good maxim to follow is: “EXPLAIN but don’t COMPLAIN”.