Disability accommodation (Ontario, Canada specifically)

December 1, 2011 4:21 PM

To what extent can a company accommodate a disabled person? Ontario, Canada specifically.

My friend, a web developer, runs a company with three other people. Recently, another developer joined their team (my friend did not interview or hire him; the hiring process was done by another owner). While the new developer has three advanced degrees, he has no programming or web development experience. He also has Aspergers syndrome. My friend, who is the only other web developer in the company currently, directly supervises him. From what I understand, the new employee works 50+ hour workweeks, but is unable to accomplish most of the work laid out for him or meet any deadlines. Deciding that the web development work was too advanced for him, he was switched to another department. This didn't change work performance. He needs to have my friend repeat what needs to be done, step by step, which also impacts my friends' work performance as the chief developer. I understand it is a slippery slope considering the employee has Aspergers. My question is: how much is one legally obliged to accommodate a disabled person?

posted by raintree to law & government (6 answers total)

Caveat: I am not a lawyer, and I doubt that you will receive valid legal advice here. I used to work in Ontario in a management capacity. I have no legal training, but a bit of experience with the issues surrounding accommodation. In my limited experience, one key point is the principle of reasonable accommodation. What is reasonable for a company with 1000 employees is not necessarily going to be reasonable for a company with 4 or 5 people: the larger company has, in principle, a lot more means to provide reasonable accommodation.

I would strongly suggest that you contact a lawyer with experience in that area. However, it probably would not hurt to document, document, document everything. For example: what was the hiring process like: in particular, was there any formal job description advertised. And has the new employee been given a formal job description as part of his employment contract. When work is assigned to him, expectations should be documented. The same should probably be done for other employees too, so as to show that the performance is clearly substandard.

If the employee continues not to meet expectation, he should receive written warning, documenting everything. The first written warning should document everything relevant up to that point.

But really, you should talk to a lawyer...
posted by aroberge at 4:40 PM on December 1, 2011

How do you know he has Aspergers? Officially, I mean. And how do you know that it's the Aspergers that's causing the problem? I'd start there.
posted by ThatCanadianGirl at 4:59 PM on December 1, 2011

The Ontario Federation of Labour has a good selection of articles on disability issues, including this 2008 analysis from Michael Lynk on the obligations of both employer and employee. From your description, it sounds to me (IANAL) as though the employer is nearing the legal limits of their obligation if all is documented.
posted by thatdawnperson at 5:32 PM on December 1, 2011

I am also not a lawyer, but the general idea of the laws are to make sure that people who are capable of work are not at a disadvantage because of some other disability. That's pretty easy to do with physical disabilities. You can make a workplace wheelchair accessible, add hand controls in place of foot controls, make desks height adjustable and so on.

Things to consider:

Is Asperger's considered a disability in the eyes of the law? And yes, has he actually been diagnosed by a doctor?

What does the employee say he needs to be able to do the job? If he says he needs detailed instructions, when he is given them is he able to perform those tasks? What is the procedure for when he runs into a stumbling block?

What is it, specifically, about his Asperger's that is making it difficult to accomplish his tasks?

From another perspective: does he actually have the requisite skills necessary to accomplish the work?

If he can't communicate what accommodations he needs, maybe his doctor can write a note or meet with the bosses and try to explain what accommodations will be required.
posted by gjc at 7:56 PM on December 1, 2011

Also not a lawyer, but have worked for unions in Ontario and BC.

The law is pretty serious, saying you must take ALL reasonable steps up to the point of "undue hardship" to accommodate an employee with a disability. The undue hardship threshold is high. The financial burden on the operation, the size of the operation and safety are factors (among others) that are considered.

The article thatdawnperson linked to shows what reasonable steps can look like (it's a great article, well worth the read):

This responsibility requires the employer to look at all other reasonable alternatives. To prove that its accommodation efforts were serious and conscientious, an employer is required to engage in a four-step process:

(i) Determine if the employee can perform his or her existing job as it is.

(ii) If the employee cannot, then determine if he or she can perform his or her existing job in a modified or ‘re-bundled’ form.

(iii) If the employee cannot, then determine if he or she can perform another job in its existing form.

(iv) If the employee cannot, then determine if he or she can perform another job in a modified or ‘re-bundled’ form.

It sounds like your friend has done steps 1 and 3, but perhaps not 2 and 4. It might be that this new guy needs the steps for something written out for him in detail. That is probably not an unreasonable accommodation, even if it makes your friend's job harder. On the other hand, given the size of the operation (it sounds small?) it may not be possible to accommodate him at all.

Finally, the accommodation only has to happen if the employee meets the legal definition of disabled. I'm almost certain that a diagnosis of Aspergers would meet that definition. However, being kind of quirky and taking an online test that tells you you have Aspergers would almost definitely not.

I agree that your friend should speak to a lawyer. And possibly a human resources consultant with experience in accommodation.
posted by looli at 8:27 PM on December 1, 2011

IANAL, but I edit HR policies and guidebooks geared to small businesses in various provincial jurisdictions. Employers have a duty to accommodate on the basis of disability under the Ontario Human Rights Code (link to the Code and to a guide on rights and responsibilities under the Code), unless accommodation will cause undue hardship to the employer. A human rights/employment lawyer is the person to speak to in order to establish the definition of undue hardship for this particular employer. Asperger's is considered a protected category in Ontario.

You should also look at the AODA, specifically the section on Integrated Accessibility Standards, Part III.
posted by Felicity Rilke at 5:27 PM on December 2, 2011