Workplace discrimination and harassment on the basis of any of the “prohibited grounds” listed specifically in the Human Rights Code are illegal. “Disability” is one of the prohibited grounds. While the discussion below focuses on the rights of individuals with disabilities, there are other prohibited grounds in the Code which can also trigger the right to an accommodation. For example, discrimination on the basis of sex is also illegal. One of the things this can mean is that a school board may be required to arrange a temporary workplace accommodation for a woman who is pregnant. For example, she may have restrictions with respect to lifting and bending which might necessitate limiting her teaching of physical education.
The Code requires that employees with disabilities be accommodated in the workplace up to the point of “undue hardship” for the employer. Undue hardship means, in a nutshell, that the employee must be accommodated unless doing so would significantly jeopardize the employer’s operations. The employer’s legal obligation is the “duty to accommodate.”
It should be noted that while the affected employee will be a part of the process for designing the accommodation, this does not mean that she or he has the right to decide precisely what that accommodation will look like. The employer is obligated to provide an accommodation that meets an employee’s needs, but not necessarily her or his preferences. An appropriate accommodation is one which results in equal opportunity, and which respects the individual’s dignity. It is up to the employer to design an appropriate accommodation, and there may be more than one solution for doing so. Accommodations do not need to be perfect, but they must meet the test of being reasonable.
There are no cookie cutter accommodations – each one will reflect the particular needs of the individual involved, as well as the possibilities in the workplace and board as a whole. What really matters is that the accommodation actually means the member can continue to work (or return to work), and that the member’s dignity and independence are respected as a part of the process.
Here are a few examples:
Accommodations can be temporary or permanent, depending on the circumstances of the individual. When an accommodation is being sought, the employer is entitled to request documentation from a medical professional, and will usually do so. While the school board does not have the right to demand a diagnosis, a description of any limitations that may apply to the member will assist in designing the accommodation. For example, a medical letter might state that a member should not climb any stairs in the course of his or her duties. However, medical professionals cannot dictate to the employer, for example, that teacher X cannot teach a particular grade level or subject.
The steward is not responsible for designing workplace accommodations. As a steward, your role is to listen to the concerns of all members on staff, and to assist members who require accommodations by ensuring they know how to initiate the accommodation process. The local and provincial offices will then work with the board to make sure the member’s accommodation needs are met. In many boards, there is a designated individual within Human Resources who handles accommodation issues from the management side. Once the possibilities have been examined and a reasonable accommodation has been worked out, the matter generally ends there. In rare instances, the union will need to pursue a grievance in order to enforce a member’s right to a workplace accommodation.
While implementing accommodations for employees is primarily the responsibility of the employer, unions have responsibilities too. For example, unions must cooperate in the accommodation process – and ETFO has a good track record of doing so. Both the local and the provincial offices of ETFO work with district school boards on a regular basis to make sure that the needs of members with disabilities are being met.
Scenario: A teacher I have worked with on staff for some time informs me she has a condition that is accompanied by severe fatigue. She knows she is a good teacher and wants to continue teaching, but is at the end of her rope. She is afraid that the principal and even some of her colleagues will think she is not pulling her weight if she seeks an accommodation. What should I do?
School boards and teachers are quick to acknowledge the rights of students to be accommodated within the education system. Ironically, some teachers are more reluctant to come forward to acknowledge their own accommodation needs.
There are any number of reasons why individuals may be reluctant to seek assistance. They may be afraid of ‘rocking the boat’. They may fear stigma or a negative reaction on the part of the principal or others. New teachers may fear that the issue will follow them for the rest of their careers.
At the end of the day, it is up to the individual to decide; disclosure is a sensitive issue. On occasion staff members may even choose to quietly work out their own accommodations (such as switching classrooms with a colleague), though such arrangements may not survive the next change of school administrator.
Bear in mind that many disabilities are not visible. If you are aware that a colleague is struggling in her or his job assignment, there may or may not be a disability-related reason. Respect the member’s privacy, but work towards building a relationship with all staff members which is one of trust, and good communication.
The best way to build understanding about the issue of workplace accommodations is to be open and informed about the process. In your dealings with your colleagues, present it as a normal part of labour relations in schools – which it is.
An individual seeking an accommodation may or may not choose to disclose that fact to the rest of the staff, and the member’s choice should be respected. However, when talking with staff members as a group in a general information session, you may want to think about:
Having the right information is sometimes all that is needed for members to develop the confidence to come forward.
This piece was written with input from the ETFO Standing Committee on Disability Issues.