hri_Admin Staff asked 2 years ago
Hi,
We are located in Ontario and we have an employee that suffers from high blood pressure and takes medication. He is required to perform physically demanding work. Can we require him to provide medical proof that he is capable of performing his responsibilities? Can this be an ongoing requirement (eg. needs to confirm every 3 months that he is physically capable)? He has missed time at work due to medical reasons.
Would this type of condition be protected under Human Rights legislation? “It is the OHRC’s position that anticipated disabilities are also covered by the Code.[19] This would apply where a person does not currently have a disability, but they are treated adversely because of a perception that they will eventually develop a disability, become a burden, pose a risk, and/or require accommodation”
Thanks
hri_Admin Staff answered 2 years ago
Yes, the employee would be protected under human rights laws as having a disability or perceived disability. The tough part is figuring out what you should actually do.
The first thing I’d want to know is why are you bringing up this issue now? Timing is very important. According to Ontario Human Rights Commission:
“Where an organization is aware, or reasonably ought to be aware, that there may be a relationship between a disability and someone’s job performance, or their abilities to fulfil their duties as a tenant or service user, the organization has a “duty to inquire” into that possible relationship before making a decision that would affect the person adversely.[216] This includes providing a meaningful opportunity to the employee, tenant or service user to identify a disability and request accommodation. A severe change in a person’s behaviour could signal that the situation warrants further examination.”
http://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability/8-duty-accommodate
Glenn again: Generally, employers may require medical assessments to determine whether a person is physically capable of carrying out the essential duties of the job. The problem is that you’re supposed to do this AFTER making the job offer but BEFORE hiring the employee for the position. In that case, the job offer is conditioned on the assessment’s finding that the person is medically fit for the job.
The problem is that it sounds like you’ve already employed this person. If the guy’s already been working at the job, asking for medical assessment at this point is going to be problematic. However, it may be justifiable if either: i. You’re assigning an employee who’s been with you for a while to a different position; in other words, you want to do the assessment to ensure that an employee not currently performing strenuous labour is physically capable of working in a strenuous position BEFORE assigning him/her; or ii. New information has come to light that gives you reason to suspect that the employee can’t perform the position. It sounds like ii. might be in play here.
I hope all of this helps answer your question and I commend you for asking it. It sounds like you have an excellent sensitivity to the human rights and privacy issues. Feel free to follow up online. glennd@bongarde.com