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October 02, 2013
Disability accommodation is a two-way street

A British Columbia Human Rights Tribunal decision has stressed the need for both employers and employees to communicate their accommodation policies and requirements when an employee is disabled.

The case involves an employee who lost a portion of his foot in 2007.   He returned to work in 2008.  However, in 2011, the company moved his office to another building approximately 300 metres from where he performed most of his duties.  The relocation resulted in significant pain and discomfort for the man as he frequently had to walk from building to building and climb stairs.  He then filed a complaint with the Human Rights Commission alleging that his company discriminated against him based on his physical disability.

According to the worker, he complained about the pain and discomfort to his supervisor.  He also noted that many supervisors had observed his difficulty walking and using stairs.  In his submission to the Human Rights Tribunal, he asserted that the company did nothing to accommodate his needs.

In its defence, the man’s employer noted that it did not know and could not have reasonably known that the man required accommodation for his disability as he had not expressly told the firm of his need for accommodation.  In addition, it said, he never objected to his office being relocated to a building some distance from where he did most of his work.  It then filed for the case to be dismissed.

In its review of the case, the Tribunal denied the application for dismissal, citing that the company should have been aware of the adverse effect the office relocation would have on the man’s injury.  Furthermore, it said, the company had a duty to inquire whether the relocation would have had an adverse effect on the employee.

However, while it did support the employee’s position, the Tribunal also noted that an employee must engage in  processes to encourage accommodation for a disability and not rely entirely on an employer’s duty to inquire about accommodation.

“There is nothing in the nature of [the man’s] disability which would prevent him from expressly advising his employer that he needed an accommodation with respect to their request that he occupy an office on the second floor of the building,” the Tribunal ruled.  

The British Columbia case confirms that the duty to accommodate disabilities is a two-way street.  While an employer must make every effort to accommodate an individual’s disability “to the point of undue hardship,” it cannot be expected to assume that accommodation is necessary when there is an absence of information or circumstances that would trigger it to make inquiries about a disabled employee’s situation or need for accommodation.

Ultimately, both employers and employees must each take responsibility for the disability accommodation process.

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