Advice about Accommodations

1. What does the law say about workplace accommodations for individuals with disabilities?

Workplace discrimination and harassment on the basis of any of the “prohibited grounds” listed specifically in the BC 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 an employer 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 physical activities.

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 known as the “duty to accommodate.” 

Please bear in mind that while the affected employee will be a part of the process for designing the accommodation, this does not mean that they have the right to decide precisely what that accommodation will look like.  The employer is obligated to provide reasonable accommodation that meets an employee’s needs, but not necessarily meets the employee’s 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.

2. What kinds of accommodations can be arranged in our workplaces?

The duty to accommodate requires an employer to investigate different ways of performing various tasks.

The employer is required to provide reasonable accommodation up to the point of undue hardship. Undue hardship occurs when the cost of the accommodation brings the company/organization to the brink of bankruptcy or results in significant increased risks to the safety of the worker, co-workers or the general public.

3. What medical information is the employer entitled to?

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 employer 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 or ladders in the course of their duties. However, medical professionals cannot dictate to the employer, for example, that employee X cannot perform a particular job. Medical documentation is used to ensure a worker returns to work safely but should not be used to determine how or what work the worker returns to.

4. What is my responsibility as a Unit President/steward with respect to workplace accommodations?

The Unit President/steward is not responsible for designing workplace accommodations. As a Unit President/steward, your role is to listen to the concerns of all members, and to assist members who require accommodations by ensuring they know how to initiate the accommodation process. The Local 2009 Union Servicing Rep. will then work with the employer to make sure the member’s accommodation needs are met. In many workplaces, 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. Every worker should be encouraged to demand their right to have the union involved in any and all RTW discussions.

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 USW Local 2009 commits to doing so. The Local 2009 Union Servicing Rep. will work with employers on a regular basis to make sure that the needs of members with disabilities are being met.

Scenario: A worker I have worked with for some time informs me they have a medical condition that is accompanied by severe fatigue. They know they have always been a good worker and wants to continue working, but is at the end of their rope. They are afraid that the management and even some of their co-workers will think they are not pulling their weight if they seek an accommodation. What should I do?

• You should let your member know that you are glad they felt comfortable enough to come and talk to you, and that you will do your best to assist.
• Refer them to the Local 2009 Union Servicing Rep. who can help initiate the accommodation process. Ensure that they have the appropriate phone numbers and other contact information.
• You can explain that the details of what a workplace accommodation might look like will be worked out by the employer in cooperation with the union.
• Reassure them that helping to arrange workplace accommodations is part of the normal work which the union does and that they do not have to fight this battle on their own.
• Point out that seeking an accommodation is not asking for special treatment on their part, but is simply a matter of exercising their legal rights.
  
  

5. How can I encourage members who require accommodations to come forward?

• 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 management or others. New workers may fear that the issue will follow them for the rest of their careers. Workers nearing retirement may decide it is easier to just put up with it for another three years.

  At the end of the day, it is up to the individual to decide; disclosure is a sensitive issue. Bear in mind that many disabilities are not visible. If you are aware that a co-worker is struggling in their 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 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 members, present it as a normal part of labour relations in workplaces – which it is.

  
  

  6. How can I help inform our members about accommodation issues?

  An individual seeking an accommodation may or may not choose to disclose that fact to the rest of the workforce, and the member’s choice should be respected. However, when talking with members as a group in a general information session, you may want to think about:

•  raising the issue of accommodations on the basis of disability or other grounds.

• outlining the process for seeking a workplace accommodation including always formally requesting involvement of the union.

• pointing out that a change in any co-worker’s work assignment or specific duties may be the result of a workplace accommodation, and that the individual’s right to privacy in such situations needs to be respected.

Having the right information is sometimes all that is needed for members to develop the confidence to come forward.