23 Jan Disabilities in the Workplace
‘Ableism’ refers to discrimination or social prejudice against persons with disabilities. It is rooted in the assumption or belief that people with disabilities are incapable, or inferior to nondisabled people. While many people with disabilities are capable of making a meaningful contribution in the workplace, they often face barriers due to outdated assumptions, fear, stigma, and prejudice.
In Trinidad and Tobago, the Equal Opportunity Act provides a statutory framework for the treatment of people with disabilities in the workplace.
The Act defines a disability as:
(a) total or partial loss of a bodily function;
(b) total or partial loss of a part of the body;
(c) malfunction of a part of the body, including a mental or psychological disease or disorder; or
(d) malformation or disfigurement of part of the body.
It applies to all employees (full-time, part-time, casual, temporary, or permanent) and even to persons seeking employment.
The Act prohibits an employer from discriminating against a disabled employee, that is to say treating them less favorably than a nondisabled person, when it comes to:
(a) their terms or conditions of employment (including salary);
(b) opportunities for promotion, transfer, training, or any other benefit, facility or service associated with employment; or
(c) terminating their employment or subjecting them to any other detriment.
For potential employees, the Act prohibits discrimination:
(a) in the arrangements that the employer makes for the purpose of determining who should be offered employment;
(b) in the terms or conditions on which employment is offered; or
(c) by refusing or deliberately omitting to offer employment.
Employers should provide reasonable accommodations for persons with disabilities. This might include making adjustments to the physical workspace, equipment or machinery or the methodology normally used to perform the job. Such accommodations may be temporary or permanent depending on the nature and extent of the disability.
That said, the Act also recognises and provides for exceptions. The above requirements do not apply where:
(a) The disabled person would not be able to carry out the inherent requirements of the job;
(b) The disabled person would require special services or facilities in order to perform the job and it would be an ‘unjustifiable hardship’ for the employer to provide them; or
(c) Owing to the nature of the person’s disability and the work in question, they would pose a substantial risk to themselves or an unreasonable risk to others.
‘Unjustifiable hardship’ is not defined in the Act. However, the Equal Opportunity Commission, in its Guidelines for Employers on Disability in Trinidad and Tobago, states that unjustifiable hardship entails significant or considerable difficulty or expense. An employer would need to balance the effectiveness of the accommodation and the extent to which it would disrupt the operation of the business.
As recognised by the Act, there may be situations in which the nature and extent of a particular disability makes it difficult or impossible for a person to carry out the inherent requirements of a particular job, or to do so safely. A worker’s medical incapacity to work can be a valid and legitimate reason for terminating their employment. However, good industrial relations practice generally requires that a decision to terminate an employee on such grounds:
(a) Must be based on clear and unequivocal medical opinion; and
(b) Must follow a process that is fair and reasonable, including (i) informing the employee of the medical opinion and the fact that the company is contemplating termination (ii) allowing the employee the opportunity to make representations including a medical second opinion and (iii) considering whether there are any suitable alternative positions that may be available to the employee and consulting with the employee about alternatives. If the employee is enrolled in a pension plan and eligible for early retirement or medical boarding, this should be considered.
This does not mean that an employer can simply terminate an employee because they have a disability. Rather, good industrial relations practices recognises that termination may be an option where, as a result of the employee’s disability, they are unable to perform or safely perform the core requirements of a particular job. As outlined above, termination is not a decision to be made flippantly, but requires both (a) an unequivocal medical opinion as to the person’s capacity to work and (b) that the employer engage in active dialogue and consultation with the employee. It should be noted that in practice most medical experts would be reluctant to certify a person with a disability as being medically incapacitated on the basis of a diagnosis alone, without first exploring options for treatment, accommodations and/or alternative duties.
Ideally, both employers and employees should engage in open and meaningful dialogue. In practice, there may be cultural barriers to this. Ignorance, fear or stigma may (consciously or subconsciously) influence an employer’s perception of the capabilities of people with disabilities. On the other hand, employees and prospective employees may fear being treated differently if they disclose their disabilities to an employer and may therefore be reluctant to seek out the assistance or accommodations that they need in order to safely and properly perform their job. Creating an open, inclusive and respectful culture is therefore integral underlying step in managing disabilities in the workplace.
Disclaimer: This Document Provides General Guidance Only And Nothing In This Document Constitutes Legal Advice. Should You Require Specific Assistance, Please Contact Your Attorney-At-Law.
Catherine Ramnarine is a Partner at M. Hamel-Smith & Co. She can be reached at email@example.com