Human Rights Advisory Services

Human Rights Advisory Services
Human Rights Advisory Services

Meeting 3: Accessibility and Accommodation

Online Training Module in Accessible Customer Service

In January 2008, the Ontario government enacted the customer service regulation under the Accessibility for Ontarians with Disabilities Act (AODA), 2005. To meet regulatory compliance, the University must train everyone who acts on its behalf in accessible customer service. This training requirement applies to faculty, staff, managers, directors, department and unit heads, senior administrators and student leaders. Over 200 department and unit heads, managers and senior administrators have participated in training sessions since the summer of 2009 with further session planned for the 2010 year. Now the University is preparing to launch an online course in accessible customer service for faculty and staff. The Vice Prinicipal, Human Resources will be sending an email to faculty and staff with details about the training and requesting that everyone complete the online course on or before February 15, 2010. To begin the training, click here.

Recent Cases in Accommodation (Employment)

Four themes characterize recent decisions made by Arbitrators, Provincial Courts and the Supreme Court of Canada:

  • Supreme Court is clarifying legal standards

Arbitrators and Provincial Courts are misinterpreting legal standards and wrongfully awarding punitive damages.  The Supreme Court of Canada has asked itself three questions:

  1. In the case of chronically absent employees, what are the limits of undue hardship? (Hydro Quebec)
  2. Before applying a termination clause, what three conditions must an employee meet?  (McGill University Hospital)
  3. Can civil courts award punitive damages for discrimination?  (Honda v Keays)
  • Employers are failing to accommodate

Employers are being found responsible for discrimination on the basis of disability. They are failing to take appropriate steps to assess disabilities and/or are making poor decisions concerning accommodation plans and the limits of undue hardship.

  • Employee mistakes

Employees are failing to establish prima facie discrimination due to lack of medical documentation.  They are also failing to cooperate with the employer in its attempts to accommodate them.

  • Employers are failing to use the hybrid test

The misconduct of employees with disabilities often contains culpable and non-culpable aspects.   The hybrid approach allows employers to assess both aspects appropriately.

Key differences between accommodation in employment and in Academia

Employment is based on a contract between employer and employee in which the former agrees to pay the latter in return for work.  Education is based on a contract between a service provider and a customer in which the former agrees to provide the latter with an education in return for money.   In both the employment world and the education world, employees and students must meet occupational or academic standards in order to remain employed or to receive the education. If an employee can not meet an occupational requirement due to disability, the employer has a duty to modify the job in order to accommodate the employee, unless it can prove that to do so would constitute undue hardship.  In Academia, we do not have to change academic standards in order to accommodate students with disabilities. Students must still meet academic standards, but the university must provide them the opportunity or opportunities to achieve those standards. Examples include: extended time limits for completion of a program, extended exam periods, lightened course load, flexibility re. supervisors, and related funding issues.  Employers have a duty to accommodate employees with addictions to the point of undue hardship, even when those employees become involve in non-culpable misconduct   In residences, we are entitled to ask students with a drug problem to take a leave of absence in order to seek rehabilitation. Similarly, we do not have to accommodate suicidal or threatening behaviors amongst students. We require students to withdraw from university and to provide a letter from a psychiatrist before they can come back to the university. Employers have a responsibility to provide medical assessments and to request medical documentation as part of their duty to accommodate employees with mental disabilities.  In Academia, it is up to the students to get their own medical assessments and to provide their own medical documentation.

Recent Cases in Accommodation in University Setting

  • University wrongfully terminates medical resident with a drug addiction (Das)
  • College fails to accommodate a dentistry student with a physical disability who could not meet occupational standard at her placement (Hickey)
  • Students who fail to provide medical documentation (Harris)