July 10, 2014

“Invisible” or “hidden” disabilities may be described as those disabilities that are not easily discovered by others. Examples include chronic fatigue syndrome, chronic pain, environmental sensitivity, mental illness, cognitive limitations, and substance abuse. The hidden nature of these disabilities often leads to misunderstandings and wrong conclusions, and it is important to take the unique characteristics of invisible disabilities into account in order to meet the duty to accommodate. In this session, our panel of experts will provide practical guidance on how to identify and discuss these disabilities with employees while respecting privacy boundaries. The panelists will also provide useful information on how to implement effective accommodations in complex cases.

  • Defining invisible disabilities: What kinds of “invisible” disabilities have been recognized in the case law as disabilities under human rights legislation? What are the signs and symptoms of some common invisible disabilities that an employee is likely to exhibit at work? How do stereotypes associated with these disabilities contribute to the challenge of providing accommodation?
  • What to ask and what to tell: Does a job applicant have a duty to disclose a disability during the application process? Can a prospective employer inquire about or require disclosure of disabilities that may require accommodation or impact job performance? When will the employer’s duty to inquire about an invisible disability arise and what is the substance of that duty? How should employers and unions broach the subject of a potential disability, such as addiction or depression, with employees without exposing themselves to a claim of discrimination? How does one strike the right balance between asking enough but not too much? Do employers need employee consent to disclose information about members’ disabilities to their union? Do unions need employee consent to disclose such information to employers?
  • Meeting the duty to accommodate: In what circumstances should an employer suspect that an employee’s poor performance is impacted by a disability that requires accommodation? What medical information is the employer legally entitled to request in order to assess accommodation options (and what must the employee provide)? Why might an employer not be entitled to information regarding a specific diagnosis? What are the limits of the employer’s duty to accommodate? What are some of the unique challenges in accommodating invisible disabilities? In what circumstances must an employee accept an employer’s accommodation plan? When can the employee reject an accommodation plan?
  • Disability-specific accommodation issues: When is stress a disability requiring accommodation under human rights legislation? What common accommodations might be helpful for an employer to offer? What inquiries regarding an employee’s ability to work or return to work must an employer make prior to dismissing an employee with an episodic disability (e.g. cancer, diabetes) for absenteeism? To what extent must employers take the possibility of relapse into account when accommodating employees with addictions? Are “last chance agreements” appropriate where an addicted employee is involved in a recovery program and how many “last chances” can there be? When will environmental sensitivities amount to disabilities requiring accommodation? How have common environmental sensitivities been successfully accommodated? When will physical rearrangement of the work environment amount to undue hardship? How far must an employer go to accommodate a candidate with a learning disability? How can employers take an effective and sensitive approach to diagnosing and accommodating learning disabilities?