Disability and Accommodation Under British Columbia Employment Law

British Columbia Human Rights law prohibits discrimination in employment on the basis of disability (among other grounds). “Disability” includes any involuntary physical or mental condition which has some degree of permanence, and it also includes a “perceived disability.”

Employees and employers alike often have questions about their rights and obligations with regard to employee disability under British Columbia employment law. Experienced Nanaimo employment lawyer Sabrina Yeudall advises and represents individuals and organizations throughout Vancouver Island on these issues. Contact Candid Legal for a consultation about your particular situation.

An Employer's Duty to Accommodate and "Undue Hardship"

British Columbia employers have a duty to accommodate disabled employees to the point of undue hardship. This duty requires an employer to do everything that is "reasonable," even if it is a "hardship." What accommodations are reasonable, and thus should be made, will depend on the circumstances of a particular work environment. Some examples include:

• modifying job duties;
• altering a building or work site;
• providing technical aids;
• altering hours of work;
• permitting absences or breaks; and
• finding another, more suitable position for the employee.

It is not enough that the provision of an accommodation will require the employer to incur some hardship (i.e. expense, negotiation with a union, impacting other employees). "Undue" hardship is determined with reference to the specific circumstances, however, it can include accommodations that would require risks to health or safety of the employee, co-workers, or others, excessive disruption to the workforce or other employees, or an excessive cost given the size of the operation.

An employer can satisfy its duty to accommodate by offering a reasonable accommodation that meets the employee's needs. When such a solution cannot be found, the duty to accommodate can also end in other ways:

• rejection of an offer that meets the need resulting from the actual or perceived disability;
• refusal by the employee to provide information necessary to determine appropriate accommodation;
• refusal by the Union to participate in the process or provide its consent to an accommodation; or
• determination that there is no accommodation that does not incur undue hardship for the employer.

Policies of an employer can result in discrimination, often unintentionally. Policies that adversely affect an individual employee because of a disability are prima facie cases of discrimination. When a human rights complaint is made, the analysis focuses not on the intent of the employer but on the impact on the employee.

Proving — and Rebutting — Evidence of Employer Discrimination

When prima facie discrimination is shown, the employer must show that the standard that adversely affects the disabled employee is a bona fide occupational requirement. This requires passing a three-part test:

1. Did the employer adopt the standard for a purpose rationally connected to the performance of the job?
2. Did the employer adopt the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose?
3. Is the standard reasonably necessary to the accomplishment of that legitimate work-related purpose?

For a standard to be reasonably necessary, it must be show that it is impossible to accommodate an employee sharing the characteristics of the disabled person without imposing undue hardship on the employer. This can be a high threshold.

Contact a Nanaimo Employment Lawyer

How British Columbia employment law with regard to employee disability and accommodation applies to any given situation can be complex and fact-dependent. A strong and knowledgeable advocate can help you understand your rights and legal options. Contact Candid Legal for a careful legal analysis of your position. Call (250) 585-1595, email , or complete our online information form today.

Based in Nanaimo, BC, Candid Legal serves employers and employees throughout Vancouver Island.