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Workplace Bulletin
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How to accommodate employees with a 

disability
Monday, 20th October 2014, by Loran McDougall

In today's Workplace Bulletin:
  • Key steps towards minimising legal risk when considering reasonable adjustments
Dear Reader,

Under anti-discrimination law, you cannot treat an employee with a disability less favourably than you would treat another employee without the disability who is in the same or similar circumstances.
This does not mean you have to put up with an employee not being able to fulfil their duties because of a disability.

However, it does trigger a positive duty to explore whether it is reasonable to implement adjustments for the employee.

Reasonable adjustments are adjustments that do not impose an unjustifiable hardship on your business. In other words, you must make adjustments to accommodate an employee with a disabilityunless this would cause your business unjustifiable hardship.

Examples of reasonable adjustments include:
  • installing a wheelchair ramp;
  • modifying work instructions;
  • installing particular software; and
  • offering flexible working hours.
Be aware that you will unlawfully discriminate against an employee with a disability if:
  • you fail to make reasonable adjustments for an employee with a disability; and
  • this failure has the effect of treating the employee less favourably than an employee without the disability who is in circumstances that are not materially different.
Today, Charles Power explains how to go about deciding on what adjustments to make and what constitutes unjustifiable hardship.

Until next time,
Jessica Oldfield
Loran McDougall
Editor
Workplace Bulletin
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Key steps towards minimising legal risk 

when considering reasonable adjustments

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook

When it comes to making adjustments to accommodate an employee with a disability, you should:
  • consult with the employee about the kind of adjustments that might be required;
  • base any adjustment on the best available medical advice; and
  • consider all options for reasonable adjustments, not just those already proposed by the employee or their doctor. 
Examples
An employee whose disability sometimes requires her to work from home could be accommodated by periodically reassigning her tasks to a co-worker, which would create added burdens for the co-worker. Or, alternatively, her accommodation request could lead her employer to create a broad-based telecommuting initiative that benefits multiple employees who wish to work from home.

Likewise, an employee whose psychiatric impairment leads him to request more concrete work assignments and more measured and constructive feedback could consume more of a manager’s time, to the detriment of other employees. Or, the process of designing this employee’s accommodation could lead an employer to rethink and improve its supervisory practices more generally.
If appropriate, arrange for a suitably skilled person, such as an occupational therapist, physiotherapist, rehabilitation consultant or other qualified health professional to undertake a reasonable adjustment assessment.
Remember that you do not have to make adjustments if you can show that it would cause your business unjustifiable hardship.

How do you determine unjustifiable hardship?
Unjustifiable hardship depends on:
  • the benefit to the employee if the adjustment is made;
  • the detriment to the employee if no adjustment is made, e.g. how easily they will be able to find alternative employment (an older employee may have a harder time finding a new job than a younger one);
  • the cost to you (in both monetary terms and in terms of the impact on business operations) and your capacity to bear those costs;
  • whether there are alternative options available to deal with the issue;
  • for how long the accommodating measures will be necessary  – you are not required to provide reasonable adjustments on a permanent basis, but you do need to make it clear to the employee that the reasonable adjustment is temporary and that they will eventually be required to return to their previous duties; and
  • any impact the adjustment will have on the health and safety of others in the workplace, e.g. it would not be reasonable to accommodate a truck driver with deteriorating eyesight.
5 key steps towards minimising your legal risk
To minimise your legal exposure when dealing with work incapacity flowing from employee impairment, follow these 5 key steps:
  • Actively seek relevant information about the impact the disability has on the employee’s work performance.
  • Seek the best available medical evidence about the employee’s work capacity.
  • Enter into a dialogue with the employee to develop a plan to overcome the employee’s incapacity through reasonable adjustments. Note that the employee has an obligation to cooperate with you by having this dialogue and providing relevant medical information, either from their treating doctor or through an independent medical assessment – see last week’s bulletin for more information.
  • Undertake these initiatives independently from (but not in contradiction of) any process of determining a workers’ compensation claim.
  • Focus on reasonable adjustments and measures to overcome the issue.
Regards,
Charles Power
Charles Power
Editor-in-Chief

Employment Law Practical Handbook




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