Basic Disability Law – Know Your Rights
Recovering after a debilitating personal injury can be difficult, particularly if it has caused a short-term or long-term disability. This can be made worse by uncertainty – you may wonder if you will still have a job to return to once you recover, or if there will be a place for you at work if your disability proves to be long-term or permanent. However, if you are suffering from a disability, you do have rights under the law specifically meant to protect those who are disabled.
“Disability” is defined under Ontario law by the Ontario Human Rights Code and the Workplace Safety and Insurance act. It includes a number of categories, both physical and mental, from birth defects to the results of injuries. It also includes “non-evident” disabilities, such as chronic fatigue or back pain – ailments that are not immediately obvious yet still debilitating – or episodic conditions such as epilepsy.
At the core of one’s rights under disability law is section 15 of the Charter of Rights and Freedoms, which states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. This is, however, a very general statement – when it comes to the implementation of these rights, the law revolves around what is called a “duty to accommodate.”
The duty to accommodate is governed by section 17 of the Ontario Human Rights Code, and is the requirement that any public entity, from a government to a business, must remove barriers from their premises that might prevent somebody with a disability from accessing their services or fulfilling their obligations. This most often appears in employment situations, where an employer must implement measures to ensure that somebody with a physical or mental disability can carry out their job without difficulties. These measures can include:
- Access features such as automatic doors or wheelchair ramps.
- Flexible work or break times for those who require it, such as somebody suffering or recovering from chronic fatigue.
- Job restructuring or reassignment in cases where one has been disabled to the point that they are no longer able to fulfill the former requirements of their job. This reassignment, however, cannot be a demotion, as that would constitute discrimination. Likewise, an employer cannot fire an employee for becoming disabled.
- Providing sign language interpreters for those who are deaf or hard of hearing. Likewise, if one is suffering from failing eyesight or blindness, an employer must provide Braille signage where required.
This duty to accommodate is not without limits. The law also recognizes “undue hardship” – a situation where to accommodate the requirements of a disabled person would be so disruptive and costly that the business would left unable to function. “Undue hardship,” however, only involves extreme cases. Businesses are expected to undergo some financial hardship when making accommodations for a disabled employee, and resentment or inconvenience is not considered when it comes to determining if something falls under this category.
If a worst-case scenario has occurred, and your rights have been violated or you been discriminated against by your employer, you have the right to file a complaint with the Ontario Human Rights Tribunal. This would allow you to bring your complaint first through mediation and then, should that fail, before a hearing that is empowered to issue legally binding orders to rectify the situation. This complaint must be filed within one year of the incident.
It can be easy to feel overwhelmed or anxious when adjusting to a new disability, and to worry if you are going to face discrimination because of it. However, you do have rights guaranteed by both federal and provincial law, and access to justice should they be violated.