Disability, whether physical disability or mental illness, is protected from discrimination under Alberta workplace rights. This means that under labour laws an employer cannot let go of or fire an employee for having a disability, unless it can show that the reason was for a “bona fide occupational requirement.”*
However, if a disability limits an employee from performing key work tasks (“bona fide occupational requirements”) that does not give the employer the immediate right to release the employee. Labour laws confer upon the employer the “duty to accommodate.”
Right to accommodation
Under the “duty to accommodate,” if an employee develops a physical or mental disability, or suffers a workplace injury, he has a right to continue working. Up to the point of “undue hardship,” it is the employer’s obligation to make accommodations.
This may mean changing certain rules, policies, work cultures or the work environment to create a more accessible, welcoming workplace. If a disability prevents an employee from performing a certain task, the employer may also need to modify the employee’s job requirements.
The accommodation process may also require some flexibility on the part of the employee. The employee is expected to participate in the accommodation process and accept reasonable accommodation.
In general, an employer does not have the right to refuse to continue to employ a worker, unless it can demonstrate that sufficient effort was made to try to accommodate the employee, and the refusal is reasonable and justifiable based on work requirements.
Return to work
If an employee incurs a disability or is absent for a prolonged period due to physical or mental disability, an employer can request information to ensure the employee is fit to perform key duties of the job. Employees are responsible for cooperating with any reasonable requests.
If you suspect you may have been wrongfully dismissed because of disability, your rights under Alberta human rights legislation may have been violated. Contact the Lypkie Henderson Employment Law office to arrange a consultation.