Canadian Safety Reporter

CANADIAN SAFETy REPORTER Management team needs disability training Continued from page 5 perceived risk of liability: Judd v. Stangl's Enviro Lawn Care Unlike the Manitoba and B.C. decisions, in this Ontario decision the employee did in fact have a number of diagnosed disabilities. Yet it was the employer's unsupported concern for the potential risk of liability resulting from those disabilities that ultimately got it into trouble. The employee was born with several congenital disabilities. He had six fingers, one short leg and one short arm, he was missing an ACL joint and had a malformed ankle. Despite these disabilities, he worked for the employer as a member of its landscaping crew for about one month, fulfilling his assigned duties and responsibilities ably and safely. One day his immediate supervisor approached him and asked: "With the way you are, can you do the job?" The employee assured his supervisor he could do the job and, in fact, there was no evidence to suggest otherwise. Nevertheless, his employment was terminated the following day. The Human Rights Tribunal of Ontario found the termination was motivated by the employer's admitted — though unsubstantiated — concern that the employee's continued employment could resource corner result in a workplace injury and associated worker's compensation claims. The employee was awarded $14,000 in lost wages and as compensation for injury to his dignity. practical tips The fact a perceived disability can provide the basis for a human rights discrimination complaint can present challenges for employers. On the one hand, most employers appreciate the range of relevant human rights issues and want to do right by their employees, while at the same time manage a productive and profitable operation. On the other hand, where an employee appears to have a disability but has not sought accommodation in the workplace, an employer can find itself in a difficult situation. To minimize the risk of liability associated with discrimination on the basis of perceived disability, consider the following tips: do not assume: If an employee's work is being done satisfactorily, and there is no other reason to believe he requires accommodation, there is generally no basis to inquire further. Presupposing an employee is limited or restricted by his personal characteristics and treating him differently on the basis of such assumption — however well-intentioned — is a recipe for a human rights complaint. do not act unilaterally: In any accom- modation process, the employee has a positive responsibility to participate. Unilaterally imposing accommodation or modified work conditions without involving the employee in the process should therefore be avoided. Make inquiries where appropriate: In most cases, it is the employee's duty to request accommodation where he needs it. That said, where legitimate and objectively-based concerns exist with respect to an employee's ability to safely fulfill his job duties, the employer may have a separate and distinct legal obligation to inquire as to whether the employee has a disability and, if so, if he requires accommodation. These are often sensitive discussions and, in most cases, it is advisable to seek legal advice before acting. training: The fact that perception matters in the overall landscape of human rights is one that is often overlooked. Your management team should receive human rights training, including how to accommodate persons with disabilities, and how to avoid issues associated with discriminatory perceptions, views and opinions. Ashley Brown is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. She can be reached at (416) 603-0700 or www.sherrardkuzz.com. A DIRECTORy OF ONLINE OHS TOOLS AND INFORMATION ccoHs poster shows how chemicals enter the body A new poster from the Canadian Centre for Occupational Health and Safety (CCOHS) shows how hazardous chemicals in the workplace can enter the body . Through inhalation, skin and eye contact, ingestion and injection, hazardous chemicals may harm workers' health . If these chemicals are not used, stored or handled properly, they can cause injury, illness and disease, the CCOHS warns . The organization encourages employers to display the poster in workplaces so employees learn how to protect themselves . • www.ccohs.ca/products/posters/chemicals educate workers with cold and flu poster On the Public Service Health and Safety Association website, the organization hosts a downloadable cold and flu poster for employers to use in workplaces . The poster shows where high-risk germ areas are and how contaminated they may be . It provides tips to protect yourself in the workplace and habits to develop in order to prevent the spread of disease . • http://pshsa.ca/cold_and_flu_poster Canadian HR Reporter, a Thomson Reuters business 2014 7

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