Living with HIV
Know
Your
Rights
2
Accommodation
in the workplace
www.aidslaw.ca
© Canadian HIV/AIDS Legal Network, 2014
The information
contained in this
publication is
information about
the law, but it is
not legal advice.
For legal advice,
please contact a
lawyer in your
region.
Introduction
This presentation complements the brochure Living with
HIV: Know your Rights #2 Accommodation in the
workplace.
Copies of the brochure are available at www.aidslaw.ca.
The information contained in this presentation is
information about the law, but it is not legal advice. For
legal advice, please contact a lawyer in your region.
The information contained in this presentation is current as
of 2013.
Funding for the Living with HIV: Know your Rights series was provided by
the Public Health Agency of Canada. The opinions expressed in this
presentation are those of the authors/researchers and do not necessarily
reflect the official views of the Public Health Agency of Canada.
www.aidslaw.ca
© Canadian HIV/AIDS Legal Network, 2014
Introduction
The Canadian Human Rights Commission has affirmed
in its Policy on HIV/AIDS (2010):
“As a result of new drugs and forms of intervention, people
with HIV infection are now able to continue productive
lives for many years. If individuals with the requisite
workplace accommodation are able to continue to work
they should be allowed to do so. Any decision made by an
organization relying on health and safety considerations to
exclude a person must be based on an individual
assessment supported by authoritative and up-to-date
medical and scientific information.”
www.aidslaw.ca
© Canadian HIV/AIDS Legal Network, 2014
1. What rights do I have to accommodation within the
workplace?
• To accommodate an employee means to remove barriers so that he or she is
able to do the essential duties of the job.
• You have a right to work free from discrimination as long as your health allows
you to perform the essential duties of your job after accommodation has been
provided.
• Human rights laws in Canada require an employer to provide “reasonable
accommodation” to an employee with a disability.
• Every employer has a legal duty to accommodate you, short of “undue
hardship.”
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© Canadian HIV/AIDS Legal Network, 2014
2. What are some possible ways to accommodate an
employee with HIV in the workplace?
• HIV is an episodic disability — people living with HIV have periods of good
health and periods of illness.
• Accommodation will always vary according to a person’s unique needs, and
those needs may change over time.
• Examples of reasonable accommodation include:
installing
a ramp
1. Do• I have
to tell
my employer that I have HIV?
• job modifications or assignment to less demanding duties
• modifications to equipment or provision of assistive devices
• flexible work schedule
• additional time off to attend medical appointments
• alternative break schedules
• job sharing
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© Canadian HIV/AIDS Legal Network, 2014
3. Can my employer require me to disclose my HIV or
other medical diagnosis if I request accommodation at
work?
• You do not need to disclose your specific medical condition(s) to obtain
accommodation.
• You should provide relevant and appropriate information, explaining the
disability-related limitations and requirements you have in order to fulfil the
essential duties of your job.
•1. Do
When
considering
request forthat
accommodation,
I have
to tell mya employer
I have HIV? your employer is entitled to
ask for independent medical information confirming that you have a disability
and describing the limitations it places on your ability to do your job.
• Accommodation will always vary according to a person’s unique needs, and
those needs may change over time.
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© Canadian HIV/AIDS Legal Network, 2014
4. How should I make a request for accommodation?
• In order to request accommodation in the workplace, you need to disclose to
your employer that you have a disability and inform him or her of your needs
and relevant restrictions or limitations.
• If you need accommodation to continue working or to return to work, you
have a duty to cooperate with your employer and to facilitate and accept
reasonable accommodation.
•1. Do
Cooperating
might
I have to tell
myinclude:
employer that I have HIV?
•
•
•
•
cooperating to obtain necessary information (e.g., expert opinions)
discussing possible solutions
helping to develop an accommodation plan
working with the employer on an ongoing basis to manage and monitor
the accommodation process.
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© Canadian HIV/AIDS Legal Network, 2014
5. What does my employer have to do if I request
some accommodation?
• Your employer should respect your privacy and request only the information
that is required to determine how to reasonably accommodate your needs.
• The employer should separate the essential duties of the job from the nonessential duties of the job. Only the essential duties should be considered in
determining what accommodation is necessary.
• Your employer cannot refuse to accommodate you without a legitimate
reason.
If to
thetell
employer
claims that
that Ithe
accommodation
you require poses
1. Do
I have
my employer
have
HIV?
undue hardship, the employer is required to prove that this hardship is real,
measurable and significant.
www.aidslaw.ca
© Canadian HIV/AIDS Legal Network, 2014
6. If I belong to a trade union, can it help me with my
request for accommodation?
• Collective agreements include the protections against discrimination set out
in the applicable human rights code, including the employer’s duty to provide
reasonable accommodation for employees with disabilities.
• Your union can help you by supporting your request for accommodation in
order to work.
• The union also has a duty not to discriminate and to agree to reasonable
measures
bytell
themy
employer
to accommodate
an employee with a disability,
1. Do
I have to
employer
that I have HIV?
unless it would impose undue hardship on the union and its members.
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© Canadian HIV/AIDS Legal Network, 2014
7. When could my request for accommodation create
“undue hardship” for my employer?
• Your employer is required to accommodate a request for accommodation
unless it would create “undue hardship” for the employer.
• Each situation should be assessed individually and according to the criteria for
the relevant jurisdiction. Criteria for assessing undue hardship vary between
the federal and provincial laws, and between provinces and territories.
• Some factors commonly considered include:
cost to tell my employer that I have HIV?
1. Do• I have
• the nature and size of the employer
• the degree to which the accommodation measures would interfere with
the operation of the employer’s business
• the health and safety of the employee, co-workers and the public
• the impact on other employees
• any disruption of the collective agreement
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© Canadian HIV/AIDS Legal Network, 2014
8. What can I do if I think I have been unfairly treated
by being denied accommodation?
• You may pursue a complaint under the applicable human rights statute,
whether federal or provincial/territorial
• You may initiate legal proceedings before a court alleging a breach of your
constitutional right to equality under the Canadian Charter of Rights and
Freedoms.
• For unionized employees, the union may file a grievance on the employee’s
behalf
alleging
breach
of thethat
collective
1. Do
I have
to tellamy
employer
I haveagreement.
HIV?
For more information, see Remedies for discrimination and privacy violations in the
workplace in this series.
www.aidslaw.ca
© Canadian HIV/AIDS Legal Network, 2014
Scenarios
1. I have recently been diagnosed with HIV and am experiencing a lot of
side effects from the medications I am taking. I do not want to stop
working — I love my job and I feel that I need to remain as active and
engaged as possible. I am however finding it difficult to be on time for
work in the morning and to focus for long periods of time. What can I
do?
2. I requested that my employer install a ramp at the back entrance to
the business because I am having a hard time getting up and down
the steep stairs. My employer wants to know why I can no longer
handle the stairs and says it is unreasonable for me to expect “special
treatment”. I do not want to tell my employer the details of my
condition because it is a small shop and I am afraid everyone will find
out in no time. What should I tell my employer?
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© Canadian HIV/AIDS Legal Network, 2014
Conclusions
Accommodation will vary
according to a person’s
unique needs, which must
be considered, assessed
and accommodated on an
individual basis.
www.aidslaw.ca
© Canadian HIV/AIDS Legal Network, 2014
Under Canadian human rights law, all
persons capable of performing the
essential duties or requirements of a
job or services are entitled to be treated
equally. Living with HIV should pose no
barriers for the vast majority of jobs —
other than the barriers sometimes
created by misinformation, stereotypes
and prejudice.
Thank You!
Canadian HIV/AIDS Legal Network
http://www.aidslaw.ca
Phone : +1 416 595-1666
Email: info@aidslaw.ca
www.aidslaw.ca
© Canadian HIV/AIDS Legal Network, 2014