In our last article, we outlined some employment accommodations that workers with disabilities may use. Workers have the right to accommodations under the Ontario Human Rights Code (the Code). In addition, the AODA requires employers to accommodate workers with disabilities. In this article, we explore the accommodation of alternative work.
Under the Ontario Human Rights Code (the Code), workers who gain disabilities have the right to continue working in their current jobs. In other words, their employer must implement accommodations so that the worker can remain in their current role. However, a worker may not always be able to perform the essential tasks of their job, even with accommodations. For instance, a worker who loses their vision can no longer perform the essential functions of a truck driver. In these cases, the worker instead has the right to alternative work. In other words, the worker has the right to a different job with the same employer. Moreover, this job should not be a promotion or a demotion.
Some workers may need alternative work permanently. Alternatively, other workers may need alternative work temporarily, because their disabilities change over time. For instance, a worker with a mental health disability may experience periods of difficulty with concentration, between times when they are feeling their best. As a result, this worker may sometimes be able to perform job tasks requiring intense focus. However, at other times, the worker may need job tasks requiring less close attention. Therefore, the employer may need to restructure the worker’s job. In other words, the worker could permanently exchange some job tasks with a colleague. As a result, the worker has a job requiring differing levels of focus, to accommodate their changing levels of concentration.
In contrast, a worker with a brain injury may need alternative work when they first return to the workplace. However, they may later regain lost brain function, and be able to perform the tasks of their previous job.
In all these cases, the workers have the right to the accommodation of alternative work. Furthermore, the employer has a duty to help the worker determine what type of alternative work would be most appropriate for them. For example, the worker and employer must discuss how the worker’s disability impacts the job functions they can perform. Then, the employer must identify jobs or job tasks most suitable for the worker, given their qualifications and abilities.
In addition, the employer must also consider how the worker could enhance those qualifications or abilities, if necessary. For example, a worker could be almost, but not quite, qualified for a position that the employer is hoping to fill. The employer could arrange for the worker to take a course that would qualify them for the open position. Once the worker is qualified, they could return to work in the new position.
Alternative work and other employment accommodations allow workplaces to access more potential employees eager to use their diverse skills and expertise. Moreover, workplace accommodation helps the economy because it allows workers to contribute to society in meaningful ways.