Disability Issues in the Workplace
Common Law, Human Rights, Frustration, Accommodation & Statutory Protections
This chapter examines the interaction between disability and employment law,
including wrongful dismissal, disability insurance, frustration of contract,
human rights remedies, accommodation, workers’ compensation, statutory leaves
and newer legislative protections.
Common Law & Human Rights Issues
Disability disputes may engage wrongful dismissal, human rights,
tort remedies and aggravated damages at the same time.
Remedies for Disability-Based Adverse Treatment
Employees adversely treated because of disability may have access to
human rights proceedings, civil remedies, reinstatement, compensation
for lost income and other forms of relief.
Workers’ Compensation & Disability Rights
Workers’ compensation findings may interact with human rights claims,
accommodation obligations and other employment-law remedies.
Duty to Accommodate
Accommodation requires an individualized assessment of the employee’s
disability and reasonable workplace adjustments to the point of undue hardship.
The duty may become central both to human rights liability and to the analysis
of whether continued employment is genuinely impossible.
Civil Remedies
Disability-related workplace conduct may support contractual, tort and
aggravated-damages claims in addition to statutory human rights remedies.
Protected Statutory Leaves
Employment standards legislation provides protected medical and related leaves,
often accompanied by reinstatement rights and restrictions on discipline or dismissal.
Disability Insurance & Common Law Notice
Disability benefits may interact with common-law wrongful-dismissal damages,
including questions of deduction, double recovery and insurer subrogation.
Frustration Due to Medical Disability
Medical frustration arises where disability makes the continued performance
of the employment contract impossible or radically different, subject to
important human-rights and accommodation considerations.
When to Assess Medical Status
The timing of the medical assessment can be decisive in determining whether
frustration existed and whether future return to work remained reasonably possible.
New Statutory Minimum Rules on Disability Issues
Recent statutory reforms in several Canadian jurisdictions establish additional
minimum protections affecting medical information, disability-related absence
and the employer’s treatment of disabled employees.