April 16, 2019

What's The Ontario Human Rights Code (OHRC)

April 16, 2019

While we seem to hear a lot about the Employment Standards Act or the labour Relations Act, The other key piece of legislation/regulations that skips the limelight is the Ontario Human Rights Code or OHRC. Here's a recap of a real occurrence, forr business owners /Employers, that highlights the importance of being compliant with it while dealing with employee issues.

An Ontario arbitrator found that an employer violated the Ontario Human Rights Code (OHRC) by requiring a diabetic employee to leave his workstation to test his blood glucose and to inject insulin because this stigmatized the employee and created a negative perception about his disability. There was no evidence to support the employer’s claim that the employee’s self-care posed a hazard to other employees.

Case In 10 Points

  • Employee working at a 24/7 call centre was diagnosed with diabetes. As a result, he had to test his blood glucose level and inject insulin at his workstation 15 minutes before his break.
  • The call centre employees worked at workstations/cubicles in an open space. They did not have assigned cubicles and would simply work in whatever cubicle was available on their shift.
  • The employer did not have these cubicles cleaned between shifts but instead provided employees with disinfectant wipes so they could clean the cubicles themselves.
  • At first, the employer was supportive of the diabetic employee’s self-care. However, within a few months, a union steward working in the area reported that the employee testing his blood and injecting insulin at his cubicle might be a health and safety issue.
  • On receiving this report, the employer told the employee that he should stop monitoring his blood glucose/injecting insulin at his workstation. Relying on the workplace health and safety policy, the employer directed the employee to instead use one of the nearby offices that was often empty.
  • The employer was also willing to change the employee’s break schedule to coincide with the employee’s testing schedule.
  • The employee claimed the employer’s new direction was discriminatory. He testified that being told to use the offices for his care made him feel alienated and that his disability was unwelcome and inconvenient for his co-workers. He also stated that it was disruptive to his work to leave his workstation to administer his care.
  • The employer defended its action by stating that the employee’s self-care posed a health and safety risk to other employees. The employer alleged that the kits used by the employee were biohazardous, and there was a risk that blood-borne pathogens could be transmitted to other employees. Therefore, the employee should test his blood levels and inject insulin privately and away from other employees. However, the employer provided no medical or scientific evidence to support its position.
  • It was clear that the employee had a disability that was recognized under the Ontario Human Rights Code (“the Code”). And in order to manage that disability, the employee needed to monitor his blood glucose level and administer insulin.
  • The arbitrator found that requiring the employee to use a private office was discriminatory because it was based on the assumption that the employee’s diabetic care posed a risk to his co-workers. But such an assumption was not supported by objective evidence. And to the extent that there was any risk, the arbitrator found that it was no more severe than any other health and safety risk associated with sharing workstations. Therefore, the employer’s direction had an adverse impact on the employee in connection to the disability.

It was then up to the employer to justify the discriminatory requirement. The arbitrator found that the employer was unable to do so. Although employers may have good intentions when responding to employees’ reported concerns about health and safety, they must nonetheless comply with the Code when accommodating an employee with a disability.

If an employer’s concerns are related to the health and safety of other employees, it must rely on scientific and medical evidence to support its actions and not make unsupported assumptions of an employee’s disability. As we’ve seen, a failure to do so runs the risk of isolating and stigmatizing the employee and creating an incorrect and negative perception among other employees that the disabled employee presents a health and safety risk.

Key Take Aways

To avoid this pitfall while still appropriately accommodating those with disabilities, employers should consider the following:

  • Involve the employee with the disability in the accommodation process: Though employees are not entitled to solely dictate their own accommodation, involving them in the process encourages an open dialogue about the employee’s needs and perceptions. It could also increase the likelihood of identifying a successful accommodative measure.
  • Consult with the employee’s treating medical practitioner: If an employer has concerns about an employee’s disability, including how it may manifest in the workplace or whether it presents any health and safety issues, then the employer should consult with the employee’s treating medical practitioner. Ask the practitioner for more information or clarification, particularly about any concerns that you may have about the preferred or suggested accommodation.
  • Do your own research if necessary: If the employee’s treating medical practitioner is unwilling or unable to co-operate or address your concerns, then consider seeking a third party’s medical or scientific opinion. Wherever possible, an employer’s response or directions should be based on such objective and medically supported data.
  • Train your employees: Employees should be trained and encouraged to immediately bring forward any health and safety concerns to their manager. However, the training program should also include the employer’s duty to accommodate those with disabilities. Employers should also invite employees to appropriately challenge incorrect assumptions regarding physical and mental disabilities.

If you’re a Beneplan client, please call or email us to get help with these or any other organizational HR issue that you may face. Also, don’t forget the HR Toolkit section of your client login, for document resources that you can avail of.

If you’re not yet a Beneplan client, check out our value proposition and let us help you build a better group benefits plan for your organization. Ask about our free, no obligations quote.

Reference: International Brotherhood of Electrical Workers, Local 636 v Tyco Integrated Fire and Security Canada Inc., 2018 CanLII 80194 (ON LA)


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