Check If You Have An Impairment
You have an impairment if your physical or mental abilities are reduced in some way compared to most people. It could be the result of a medical condition – like arthritis in your hands that means you cant grip or carry things as well as other people.
An impairment doesnt have to be a diagnosed medical condition. If youre suffering from stress, you might have mental impairments – like difficulty concentrating – as well as physical impairments such as extreme tiredness and difficulty sleeping. It still has to have a substantial and long-term adverse effect on your ability to carry out day-to-day activities.
Your impairment doesnt have to stop you doing anything, as long as it makes it harder. It might cause you pain, make things take much longer than they should or mean that youre unable to do an activity more than once.
Coronavirus And Disability Discrimination
Disabled people and many people with health conditions have been disproportionately affected by the COVID-19 pandemic.
During the pandemic, employees and workers have the same rights as usual to not be discriminated against at work because of disability.
- workplace safety
- ways of working, for example flexible working or hybrid working
- supporting staff who are at a high risk from COVID-19
- redundancy
What Are The Remedies Available To Me
Victims of disability discrimination can recover remedies to include:
- back pay
- compensatory damages
- punitive damages
- other actions that will make an individual “whole”
Remedies also may include payment of:
- attorneys’ fees
- expert witness fees
- court costs.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.
Your state law may allow for greater or different remedies than federal law .
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Check If The Effect Of Your Impairment Is Substantial
A substantial effect on your day-to-day activities means one thats more than minor or trivial.
The effect on your normal day-to-day activities might be substantial if you have more than one impairment. Other examples of when the effect might be substantial include:
- taking longer with everyday tasks like getting dressed, going to the toilet or preparing meals because of pain, if you didnt take your painkillers
- finding it difficult to go out on your own because of a phobia, physical restriction or learning disability
- being unable to concentrate on watching TV or reading a newspaper because of mental health issues
- finding it difficult to talk to people and avoiding socialising because you have Aspergers Syndrome and cant always understand what people mean
- having seizures which cause you to lose awareness of your surroundings
- being unable to read a book without an aid because of a learning impairment such as dyslexia
The effects might only be minor or trivial if they have very little effect on your daily life, like if the only effect on you is that you have to stop for a few minutes’ rest after walking for a mile at a normal pace.
Key Points For Employers
Before deciding to dismiss employers should:
- Make all possible reasonable adjustments to facilitate the employees return to work.
- Provide sufficient warning to the employee about the risk of dismissal if the absence continues.
- Consult with the employee about why they are off work and what might be done to encourage a return to work.
- Wait long enough to find out whether or not the employee might return to work before dismissing.
- Consider if the absence might have been caused by a failing on the employers part.
- Follow carefully internal procedures for capability dismissals, being prepared, if necessary, to raise the justification defence in relation to discrimination arising from disability and collect evidence of detailed efforts to address the duty to make reasonable adjustments .
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Check Your Drugs And Alcohol Policy
If you suspect that one of your employees may have problems with alcohol, refer to your drugs and alcohol policy, which should be tailored to your business and the style of work. Most policies will state that:
- alcohol should not be consumed during the working day, during breaks or shortly before work, or at work events without explicit permission
- turning up to work drunk or drinking alcohol at work is unacceptable and may be considered an example of gross misconduct
- a level of support may be provided to an employee with a drinking problem, such as time off work to receive treatment
- all information will remain confidential.
What Are Some Examples Of Disability Discrimination
Disability discrimination can occur in many ways. The most common types of disability discrimination are direct discrimination indirect discrimination failure to make reasonable adjustments and harassment.
Direct Discrimination occurs when you are treated worse than someone else in a similar situation because of your disability. For example, a restaurant allows a family with a child who has cerebral palsy to eat in their outdoor seating area but not in their family room. The family with the disabled child is not given the same choices that other families have and likely has a case for direct discrimination.
Indirect Discrimination occurs when there is a particular policy that affects persons with disabilities unequally. For example, a local authority, such as a Health Department, makes a flyer about its services for residents. In order to save money it does not produce an easy-to-read version of the flyer. This makes it more difficult for someone with a learning disability to access the information and services which could amount to indirect discrimination. This type of discrimination is unlawful unless your employer can establish a good reason for the policy.
Harassment occurs when someone treats, taunts, or antagonizes you in a way that makes you feel humiliated or offended. For example, if an employee is consistently teased and called names because of his or her disability there is likely a claim for harassment.
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Does My Employer Have To Favor The Applications Of Persons With Disabilities
The ADA makes it illegal for a private employer to discriminate against a qualified individual with a disability only on the basis of disability. Therefore, an employer is free to select the most qualified applicant available and to make employment decisions based on reasons unrelated to the existence or consequence of a disability.
For example, if two people apply for a typist position, one is a person with a disability who accurately types 50 words per minute, the other a person without a disability who accurately types 75 words per minute, the employer may hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.
What Protection Does The Eqa Provide To Someone With Adisability
The provisions of the EqA apply to protect everyone fromdiscrimination in certain situations, including in the workplace,when using public services, when using business or organisationsthat provide services or goods, when joining a club or association,when using transport, or when having contact with publicbodies.
If an individual qualifies for protection under the EqA, theyare protected from discrimination or harassment in respect of a”protected characteristic”, i.e. sex, age, race, religionor belief, sexual orientation, gender reassignment, marriage andcivil partnership, and disability.
There are a number of types of discrimination that areprohibited under the EqA in respect of all protectedcharacteristics:
- Direct discrimination: treating someone lessfavourably than you treat or would treat others because of aprotected characteristic
- Indirect discrimination: applying a policy,practice or criterion which would put people with a protectedcharacteristic at a particular disadvantage compared to others, where such PCP is not a proportionatemeans of achieving a legitimate aim
- Harassment: engaging in unwanted conductrelated to a protected characteristic which has the purpose oreffect of either violating the individual’s dignity or creatingan intimidating, hostile, degrading, humiliating or offensiveenvironment for them
There are also additional considerations that apply exclusivelyin respect of disability:
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What If My Employer Thinks The Accommodation Would Be Too Expensive
An employer is not required to make an accommodation for a known disability if it would impose an “undue hardship” on the employer’s business. Undue hardship is defined as an accommodation requiring “significant difficulty or expense.”
Some of the factors taken into account when analyzing whether there is an undue hardship include:
- the nature and cost of the accommodation
- the financial resources of the employer
- the nature of the business , and
- any accommodation costs already incurred in the workplace.
It is not easy for employers to prove that an accommodation is an undue hardship, as financial difficulty alone is not usually sufficient. Other sources of money for making accommodations may be available, including tax credits or deductions and vocational rehabilitation funds. The disabled employee’s willingness to pay for all or part of the costs also can be considered, although the disabled employee cannot be required to pay the costs of accommodation.
What Is The List Of Disabilities Covered Under Ada
The list of disabilities covered under American with Disabilities Act refers to all the disabilities for which an employee is protected from discrimination by employers. The Americans with Disabilities Act of 1990, a civil rights law, prohibits employers from discriminating against employees with disabilities.
The American with Disabilities Act helps with employers or other people with disabilities from their job functions. In employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications, the ADA outlaws discrimination on the basis of disability.
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The Canadian Human Rights Act
The Canadian Human Rights Act of 1977 protects Canadians from discrimination when they are employed by or receive services from:
- the federal government
- First Nations governments and
- private companies that are regulated by the federal government like banks, trucking companies, broadcasters and telecommunications companies.
People can turn to the Canadian Human Rights Act to protect themselves against harassment or discrimination that is based on one or more of the 11 grounds of discrimination. The Act prohibits discrimination based upon physical or mental disability.
Definition Of Disability Under Ada
The ADA’s first definition of disability states that a disabled person is someone who has a mental or physical impairment that prevents participation in major life activities. If an individual has a record or history of such an impairment, he is considered disabled. Finally, if the individual is regarded as having a mental or physical impairment, the individual is considered disabled under the ADA’s first definition of disability.
The ADA has a three-pronged definition of disability. If any of the three prongs are satisfied, the individual counts as disabled. The definition of disability of the ADA is based on the Rehabilitation Act’s definition of “handicap.” A judgment under the Rehabilitation Act or the ADA is considered a precedent for the other.
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What Is Classed As A Disability
In the Equality Act a disability means a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities.
You are covered by the Equality Act if you have a progressive condition like HIV, cancer or multiple sclerosis, even if you are currently able to carry out normal day to day activities. You are protected as soon as you are diagnosed with a progressive condition.
You are also covered by the Equality Act if you had a disability in the past. For example, if you had a mental health condition in the past which lasted for over 12 months, but you have now recovered, you are still protected from discrimination because of that disability.
Opportunity For Independent Living
The principle of independent living advocates for a society where people with disabilities have opportunities to live life to its fullest and take advantage of what society has to offer. Independent living enables people with disabilities to self-actualize and fulfill their rights and responsibilities as Canadian citizens.
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Mental Health Disabilities And Addictions
Although mental health disability is a form of non-evident disability, it raises particular issues that merit independent consideration. Section 10 of the Code expressly includes mental health disabilities. The courts have confirmed that addictions to drugs or alcohol are protected by the Code. People with mental health disabilities and addictions face a high degree of stigmatization and significant barriers. Stigmatization can foster a climate that exacerbates stress, and may trigger or worsen the persons condition. It may also mean that someone who has a problem and needs help may not seek it, for fear of being labelled.
The distinct and serious issues faced by people with mental health disabilities and addictions prompted the OHRC to hold a province-wide consultation specifically on discrimination based on mental health. In 2012, the OHRC published its findings in a consultation report entitled Minds That Matter. The OHRC relied on these findings, as well as on developments in the law, international trends and social science research to inform its Policy on preventing discrimination based on mental health disabilities and addictions , which was released in 2014.
The OHRCs Mental Health Policy provides user-friendly guidance to organizations on how to define, assess, handle and resolve human rights issues related to mental health and addiction disabilities. It also addresses:
Landlords Consent Subject To Conditions
13. This regulation prescribes particular circumstances in which a condition, subject to which a relevant landlord has given consent to alterations to premises, is to be taken, for the purposes of Schedule 21 to the Act, to be reasonable.
The circumstances so prescribed are where the condition is to the effect that
the occupier must obtain any necessary planning permission and any other consent or permission required by or under any enactment
the work must be carried out in accordance with any plans or specifications approved by the L
L must be permitted a reasonable opportunity to inspect the work
the consent of another person required under a superior lease or a binding agreement must be obtained
the occupier must repay to the L the costs reasonably incurred in connection with the giving of the consent.
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The Disability Reference Guide: Its Purpose And Function
The Disability Reference Guide is a tool for identifying, clarifying and promoting policies to address issues that affect people with disabilities. While the objective of the Guide is to help ensure that federal programs , policies and services maintain or enhance the social and economic inclusion of people with disabilities , much of the Guides content may be of use to other governments, organizations or institutions.
The Guide can help to ensure that legislation, policies, programs and services:
- are inclusive of people with disabilities
- respect the rights and needs of people with disabilities and,
- promote positive attitudes and raise awareness about the needs of people with disabilities in order to prevent unintended negative outcomes.
Electing to use the Guide will help employees to:
- systematically assess and address the impacts of all initiatives on people with disabilities
- obtain a more nuanced understanding of the multi-dimensional challenges that impact people with disabilities
- build partnerships across government departments, and with NGOs and other stakeholders that work with and represent people with disabilities and,
- act as a resource in the creation of policies and programs that reflect of the rights and needs of people with disabilities.
Is There A Duty To Make Reasonable Adjustments For Carers Of Disabled People
Employees who are discriminated against because of their association with a disabled person may in some circumstances claim disability discrimination. The case of Coleman v Attridge Law LLP established that a woman who was dismissed when she was often late for work due to the care of her disabled child had been subject to direct discrimination by association. This provision is now part of the Equality Act where it refers in the direct discrimination definition to less favourable treatment because of a protected characteristic rather than the employees protected characteristic).
This case and later case law confirms that it is only where there has been direct discrimination or harassment that employees may bring claims of associative disability discrimination. They cannot claim that they should have a reasonable adjustment put in place to help them assist with, for example, the disabled persons caring or schooling arrangements.
See, for example, the European case of Hainsworth v Ministry of Defence where an employee at an army base wanted to be moved in order to be near his child`s special school. The case established that he could not claim any right to a reasonable adjustment in these circumstances.
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Is Alcohol Addiction Covered By The Disability Provisions Of The Equality Act 2010
The Equality Act 2010 Regulations 2010 specifically provide that addiction to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the Equality Act 2010. Alcohol addiction is not, therefore, covered by the Act.
However, an employee may have a physical or mental impairment that does amount to a disability within the meaning of the Act but which was caused by or was the result of alcohol addiction, for example a serious liver condition or a depressive illness. The employee would in this case be disabled, notwithstanding that the disability was caused to a large extent by the alcohol addiction. The cause of the disability is not relevant. Conversely, the alcohol addiction could be a symptom or side effect of some other medical condition from which the employee is suffering, which itself amounts to a disability.
Therefore, where an employee is or appears to be suffering from alcohol addiction, the employer should make further medical enquiries in order to ascertain whether there is an underlying medical condition, either caused by or the trigger of the alcohol addiction, which is a disability.