Tag archives: disability

Check-in for a Check-up – An Employer’s Duty to Make Inquiries

Excessive absenteeism is one of the most difficult issues facing human resource professionals today.  It is also one of the more complex areas of labour and employment law.  One of the reasons why excessive absenteeism is so complicated is because it often raises human rights implications.

The perfect example is found in Coast Mountain Bus Company and CAW, Local 111 A-227/04 (Joan Gordon) — an old case with facts still faced by today’s employer nearly two decades later.  The employer hired the employee as a bus driver in 1996 and terminated the employee in 2003 for excessive non-culpable absenteeism.  The … Continue Reading

It Takes Two to Tango: Employee-duties in the Accommodation Process

In 2012, Statistics Canada reported that 11% of the population aged 25 to 64 (or 2.1 million people) reported having limitations caused by a physical or mental disability, with conditions ranging from hearing loss, to visual impairment, to mobility challenges, to pain, to mental health conditions.  As our population ages, disability-related conditions are only projected to increase.  In light of these statistics, and given that many Canadians will spend most of their day in the workplace, knowing how to accommodate employees in the workplace has become a key part of managing today’s workforce and employees knowing what role they are … Continue Reading

Local doesn’t make the grade: The need to accommodate employees with anxiety when writing qualifying exams

John Betts, (the “Applicant”) was a carpenter and member of the United Brotherhood of Carpenters and Joiners of America, Local 1256 (the “Union”). While the parties were not engaged in a traditional employer-employee relationship, the Applicant was protected from discrimination by the employment related sanctions of the Ontario Human Rights Code (the “Code”).

Like most regulated trades, carpenters undertake an apprenticeship program which consists of on-the-job and in school training. Upon completing the apprenticeship program the Ministry of Training Colleges and Universities administers a qualifying exam. Those who receive a passing grade on the qualifying exam will be issued … Continue Reading

Key employment law developments expected in 2017

A significant amount of new employment legislation is expected or is already in place for 2017. Key changes will be in the hiring of temporary workers through an agency (referred to as “personnel leasing” in Germany), employee protection and equal treatment.

Reform of laws regarding personnel leasing

One of the main developments in 2017 will be the long expected reform of the German Act on Temporary Employment (Arbeitnehmerüberlassungsgesetz – AÜG), as well as other related laws, with effect from 01 April 2017. Aiming to reinforce the rights of temporary workers during personnel leasing and in particular to prevent … Continue Reading

Recent changes to the law on the dismissal of severely disabled employees

In Germany, as of 1 January 2017, various amendments to the law on severely disabled persons came into force. Of particular importance is a new regulation relating to the dismissal of severely disabled employees.

Until the recent changes came into force, before the dismissal of a severely disabled employee the representative body for severely disabled employees had to be heard in accordance with the relevant provisions of the German Social Code Book IX (SGB IX). However, this was not a prerequisite for the effectiveness of the dismissal and therefore rather irrelevant.

Since the beginning of this year, however, the hearing … Continue Reading

Minnesota addresses architectural barriers to public places: 2016 amendments to its Human Rights Act

Introduction

Minnesota businesses may soon see differences in disability access claims.

wheelchair

On May 22, 2016, Minnesota’s Governor Mark Dayton signed into law a new amendment to the Minnesota Human Rights Act (“MHRA”). The amendment governs what must occur before attorneys can bring suit under the MHRA challenging architectural barriers that limit accessibility to public spaces. The new law is set forth in Minn. Stat. § 363A.331 (“Section 331”) and is entitled “Actions Involving Architectural Barriers that Limit Accessibility.” Human Rights Act, Ch. 363A, § 28, § 331, 159 H.F.No. 2955 (2016) (amending § 28 and creating new § 331, the … Continue Reading

The precious help of the occupational health physician in dismissal for disability procedures

As a general principle, the occupational health physician is a major interlocutor of the employer regarding the employees’ health and safety. In particular, there exists a very specific procedure under which employees’ disability must be acknowledged by the occupational health physician in order to authorize an employer to begin a dismissal procedure.

However, such opinion of the occupational health physician is not sufficient in itself and the employer is under a general obligation to seek alternative positions for an employee whose dismissal is contemplated. As a result, a dismissal notified without complying with such reclassification obligation may lead to the … Continue Reading

Disability – what protection from discrimination do disabled employees have in France?

As a preliminary comment, it should be observed that disabled employees who carry out their professional activity in a normal working environment are considered as full-fledged employees and thus benefit from the same rights as any employee. Moreover, and in any event, an employee is never obliged to disclose his/her disability situation to his/her employer.

However, disabled employees constitute a particularly fragile population which has been the subject of great attention with a view to ensuring their professional integration within the workplace. In particular, any company with more than 20 employees is under an obligation to employ disabled persons for … Continue Reading

Disability – what protection from discrimination do disabled employees have in Germany?

In Germany, discriminating against disabled employees is prohibited by the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz). This law provides very comprehensive protection against discrimination of any kind. In addition, severely disabled employees have special rights and protection under the German Social Code (Sozialgesetzbuch IX).

1          General Equal Treatment Act

As this law transposed a European directive into German law, the concept of ‘disability’ must be understood in light of the European directive as referring to a “limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person Continue Reading

Disability – what protection from discrimination do disabled employees have in the UK?

Before the Disability Discrimination Act came into force in 1996, there was no specific protection from discrimination for disabled employees in the UK. The law on disability discrimination is now set out in the Equality Act 2010 (“the Act”) which provides for protection from discrimination in the workplace on the grounds of a number of protected characteristics including disability, race, sex, age, sexual orientation and religion or belief.

What is a disability? 

Only those employees who have or have had a “disability” which falls within the legal definition set out in the Act are protected against discrimination.

A “disability” is … Continue Reading

Are disabled employees under Venezuelan labour legislation protected from discrimination?

Yes, disabled employees are protected against discrimination in Venezuela pursuant to the Disable Person’s Law and the Organic Law on Prevention, Working Conditions, and the Work Environment. In fact, there is an express prohibition of discrimination by reason of incapacity.

The purpose of the Disabled Persons’ Law is to establish the rules according to which disabled persons will have the chance to lead normal lives within their surrounding society, their dignity and respect assured, with access to equal opportunities, protection and suitable employment conditions in accordance with their available faculties, social security, education, culture, sports, and economic rights, among others.… Continue Reading

Case Brief: On dismissal of a drug user with an unacknowledged dependency

In 2012, we referenced a case in which a complainant, terminated for breach of his employer’s drug and alcohol policy, failed to establish that the termination was discriminatory: 2012 AHRC 7. The policy at issue in the case distinguished between employees who had voluntarily disclosed addictions and those who were identified only after a breach of the policy. Harsher consequences were imposed on the latter. The complainant, who had tested positive for cocaine in post-incident testing, insisted that he was a recreational user until after his termination. Then, he claimed a dependency. The Human Rights Tribunal found that the … Continue Reading

Discrimination Found Where Lay-Off Decision Did Not Consider Disability

In the recent decision Besner v Deputy Minister of Human Resources and Skills Development the Public Service Staffing Tribunal (the “Tribunal”) held it was discriminatory to lay-off a disabled employee after she was selected by the retention and lay-off process (“SERLO”).

The complainant was an Administrative Co-ordinator with Human Resources and Skills Development Canada suffering from several disabilities, including hearing impairment and anxiety.  In 2008 she went on long-term disability leave, returning in June 2010.  When she returned her duties had been taken over by another employee and she resumed work as a “floater”.  To accommodate her disability the plaintiff … Continue Reading

Is obesity a disability?

This post was contributed by Catrina Smith, Partner, Norton Rose Fulbright LLP (London)

The Advocate General’s opinion in a recent European case has raised speculation that severe obesity could be considered a protected characteristic under the UK Equality Act 2010 and as such an employee could claim disability discrimination on the grounds of their obesity.

The case involved a childminder in Denmark who was dismissed in November 2010 after 15 years of service. During his employment the employee weighed 160kg or 25 stone and was therefore severely obese according to the World Health Organisation (WHO) rankings. One of the results … Continue Reading

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