Friday, December 22, 2006

Hypertension 24: Have A Disability? Do You Work?

Most people do not understand their rights in the workplace when they have a mental or physical disability. This post will give you some basic information about such workplace issues, including the process of being hired, what happens on the job, and what happens should you lose your job.

Although my information relates specifically to Canada, our laws are almost identical to those in the United States. In Canada we especially follow US law, just like we eagerly take its money. It does not always work quite that way in reverse--try cashing a cheque in a US bank. Human rights law in Europe is similar, but my knowledge of the law outside North America is weak.

Human rights is defined, in the context of North American law, as being being treated differently from other people because you are a member of a "group". That is, with respect to work: you are not hired, do not get a promotion, or get the lousy shifts because of your age...your gender...your religion...your sexual orientation...and so on.

Similarly, in human rights, you have some protections if you are treated because you have a physical (or mental) disability--i.e., if because of the disability you do not get hired...get that promotion...and so on. To ensure that you are not treated unfairly because of your disability, the law can require an employer to "reasonably accommodate" you. "Reasonably" is never definited, as it is specific to the individual circumstances. Accommodate means to take a positive action which eliminates the negative impact of the disability.

Various issues are addressed in reasonable accommodation. For example, even getting into the workplace (you can not make it up the stairs), use the workplace washrooms (not large enough or no hand grips built into the wall), having an inappropriately laid out workspace making it hard or impossible to do your job, and so on.

What is a disability? A physical or mental health condition which prevents you from enjoying the same benefits of life as a person without the condition. As noted earlier, how to "reasonably" accommodate a disability depends on the circumstances.

For example, say you have a mobility impairment. The building where you want to work has stairs in the front. It may be unreasonable not to offer you a job simply because you can not get up the stairs--if a simple ramp costing $1000 would do the trick. This is especially the case if the building itself is open to the general public--the law requires that if it is open to the general public, it should be open to everyone. This is why buildings built over the last several decades have ramps automatically constructed next to the front steps.

However, say you can get into the building by using a ramp, but the only place where you can work is on the third floor. There are internal stairs, no other way to get up to the third floor. The only way to overcome the internal stairs would be to install an elevator. Building an internal elevator can easily cost $150,000 or more. That kind of cost would normally be considered unreasonable--prohibitive.

One exclusion from such a cost could be if it is a government building. It is harder for a government to claim it can not afford an improvement--all it has to do is raise taxes. A private employer is different--the smaller a business, the less can be expected of it. Everything in any law lies in the details. Or is it the Devil that is in the details? Or both?

What if you have a disability when applying for a job?

The first issue: you must be qualified to do the job. If you use a wheelchair and are applying for a job in an orchestra as the 'concert master' (lead violin), then you gotta play the violin real real good. However, if you play violin like a wildcat, but are denied a job because of the wheelchair (the orchestra rejects you because it thinks it would be too 'difficult' to arrange your travel or hotel), then it may have broken the law. The orchestra may owe you the job, or compensation (including for lost salary).

What if the work makes you disabled, or if you become disabled while employed? Did you develop neck problems because your computer work station is not ergonomic? Then your employer would probably have to improve your work station--the cost of a proper computer desk, monitor, etc., is not great. Nor is the cost of an ergonomic keyboard if you have repetitive strain injuries in your wrists.

What if you need extra washroom breaks because of a medical condition? A 'reasonable' number of breaks should be no problem--the real issue should be, can you keep up the required productivity? If you need a break every ten minutes, then your employer may have to let you go. But it is not quite that simple--could the employer place you somewhere else in the business--without firing someone to make room for you?

Do you have Hypertension, as I do? Any doctor will tell you that stress is a factor in high blood pressure. Don't be misled into the argument about whether or not stress is caused by Hypertension. That is not relevant. What is relevant is whether stress exacerbates your Hypertension--makes it worse. In that case, your employer may be required to find you less stressful job duties. This is a current major workplace issue, as people work more overtime, have to produce more, have to work harder.

Something else that is important: no matter what the disability is, if you are taking prescription medications, then the side effects of the medication become a legitimate issue. If the medications slow you down, your employer may be required to accommodate you--rather than criticize you or even fire you for slowing you down. This is a tricky issue. Side effects can be subtle. Your employer may think you are a liar.

If you have a disability, and can relate not getting a job or having problems in the workplace to that disability, you should consult your local human rights organization immediately (there are deadlines for filing a complaint).

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