24 Jan What is The Duty of Employers to Accommodate People with Brain Injuries?
Originally written for and posted by the Ontario Brain Injury Association (OBIA)
Written by Jessica Golosky, Lawyer
Individuals with acquired brain injuries face a number of challenges in their daily lives, including challenges surrounding employment. Whether the individual is employed or is looking for employment, he or she is protected from discrimination under provincial and federal human rights legislation.
Both Ontario and Canadian law prohibit discrimination and harassment against individuals with disability, and employers have a duty to accommodate employees to ensure that they do not experience such discrimination. The Ontario Human Rights Code prohibits discrimination based on a number of enumerated grounds, including disability, to ensure equal treatment with respect to employment.1 This is also reflected at the federal level in the Canadian Human Rights Act (CHRA). 2
Under the Ontario Code, the definition of disability includes “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…” and explicitly includes brain injuries.3 In the federal context, although brain injuries are not explicitly included in the definition of disability, the Act is worded generally to include in the definition of disability “any previous or existing mental or physical disability”.4 Dismissing an employee with a brain injury for poor job performance as a result of that injury constitutes discrimination in the workplace, and cannot occur without attempting to accommodate the employee. Discrimination on the basis of disability can form the basis for an application to the Ontario Human Rights Tribunal.
To ensure that employment-related discrimination does not occur, employers have a duty to accommodate individuals with disabilities. The employer must collect all relevant information about the employee’s disability in order to determine how the employee can be accommodated properly, and must arrange for this to occur by modifying the work environment and/or conditions, unless doing so causes the employer undue hardship. Proper accommodation for individuals with brain injuries can involve flexibility in scheduling, making use of assistive communication devices, implementing methods to reduce stress and anxiety, adjusting the tasks performed, and assigning the employee a mentor.
There are a number of factors relevant to assessing undue hardship. The Ontario Code indicates that “the cost, outside sources of funding, if any, and health and safety requirements, if any” are to be considered. 5 Federally, the factors are limited to “health, safety, and cost”. 6
The duty to accommodate is ongoing and involves continued reassessment to ensure that the employer is appropriately and adequately accommodating the employee with the disability. Both the employee and employer are to play a role in this continued assessment to ensure appropriate accommodation. 7 The employer is to consult with the employee to provide accessible communication supports to ensure that the employee can carry out his or her job, as well as receive information available to employees generally. 8 Employers must inform all employees about their policies supporting individuals with disabilities, and are under an ongoing obligation to disseminate updates. 9
In addition to the duty to accommodate, employers have a duty to provide disabled employees with an individualized plan for responding to workplace emergencies.10 The goal of this new employment standard is to ensure that employees with disabilities are aware of how they are to be accommodated in workplace emergency situations, such as in a situation requiring emergency evacuation.
These duties do not only apply to existing employers, but also apply to potential employers when individuals with brain injuries are seeking new employment opportunities. Potential employers have a duty to ensure that applicants are aware of their right to be accommodated during both the selection process, and once successful applicants are selected, to carry out appropriate and effective accommodation in those circumstances.11
Not all individuals with brain injuries share the same needs in the workplace – it is important for personalized consultation to occur between employee and employer to ensure that effective accommodations are made. Ongoing communication between employee and employer can serve as a strong foundation for a successful employment relationship, allowing both parties to ensure that the individualized plan for accommodation can be adjusted as the needs of the employee change.
It is important for employers to be mindful of these duties, regardless of whether they currently employ individuals with brain injuries, to ensure compliance with human rights legislation and to build a successful relationship. Conversely, it is also important for employees with acquired brain injuries to know their employment rights to ensure that they are met.
1 Human Rights Code, RSO 1990, c. H. 19 at ss.5(1)-(2).
2 Canadian Human Rights Act, RSC 1985, c H-6 at ss. 3(1) and 7.
3 Human Rights Code, RSO 1990, c. H. 19 at s. 10(1).
4 Canadian Human Rights Act, RSC 1985, c H-6 at s.25.
5 Human Rights Code, RSO 1990, c. H. 19 at s.11(2).
6 Canadian Human Rights Act, RSC 1985, c H-6 at s.15(2).
7 Central Okanagan School District No. 23 v Renaud,  2 SCR 970.
8 Integrated Accessibility Standards, O. Reg. 191/11, s.26(1)-(2).
9 Integrated Accessibility Standards, O. Reg. 191/11, s.25(1)-(3).
10 Integrated Accessibility Standards, O. Reg. 191/11, s.27(1).
11 Integrated Accessibility Standards, O. Reg. 191/11, s.23(1)-(2), 24.