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Disability

Under the PEI Human Rights Act, a disability is a previous or existing condition that may result from an injury, an illness or a birth defect. Some examples of disabilities include blindness, amputated limbs, back injuries, epilepsy, cancer, developmental disorders, learning disabilities and emotional or mental illnesses such as depression. Alcohol and drug addiction are also considered disabilities under human rights law.  Common, temporary illnesses such as a cold or flu are not covered under disability. If a temporary condition, such as pain, recurs as a part of a medical condition, it may be considered a disability.

Consider these scenarios:

Scenario 1: Peter has been diagnosed with depression. His doctor has recommended that he take a leave of absence for three months for treatment and recovery. His employer tells him that his job will not be held for him.

Scenario 2: Margaret’s legs are paralyzed and she uses a wheelchair. When she tries to visit a new store, she cannot go in because the entrance has steps with no wheelchair ramp.

In scenario one, Peter may be experiencing discrimination based on disability in the area of employment while in scenario two, Margaret may be experiencing discrimination on the ground of disability in the area of services.

Employers, property owners and others that offer accommodations or services to the public must accommodate persons with disabilities to the point of undue hardship.

Addiction

Under human rights law, drug or alcohol addiction is considered a disability. When an employee has an alcohol or drug addiction that is affecting job performance, the duty to accommodate still applies. Accommodation usually includes the employer granting the employee leave to seek treatment and allowing them to return to the position. The employee must be willing to get help for an addiction problem. Reasonable accommodation does not include the employer allowing a worker to be on the job while under the influence, or continuing to employ an employee who refuses to do anything about his or her addiction.

Alcohol and Drug Testing

This area of human rights law is still developing. The PEI Human Rights Act does not contain specific provisions regarding drug and alcohol testing. Recent human rights legal decisions have held that:

  • Random testing for alcohol use is acceptable for employees in safety-sensitive positions only.
  • Random testing for drug use is never acceptable. Drugs can be detected in a person’s system long after consumption. Therefore, a positive drug test does not necessarily mean that your performance is impaired.
  • Alcohol and drug testing is acceptable in situations where there is just cause to believe an employee is under the influence at work or if an incident occurs, such as an accident that may have been a result of alcohol or drug use.

Courts have held that sanctions for a positive test must accommodate the employee. Therefore, automatic dismissal may be discriminatory.

Exceptions:

Genuine Occupational Qualification
There may be some jobs where a disability is a reasonable disqualification. For example, a person who uses a wheelchair may not be able to be employed as a construction labourer.

Pensions and Insurance
The Act states that the prohibition against discrimination on the basis of disability does not apply to the operation of any genuine retirement or pension plan or any genuine group or employee insurance plan. For example, insurers may take a disability into consideration when offering health insurance. However, you cannot be refused employment because you do not qualify for a group benefit package due to a disability.

Special Programs
The Commission may approve programs of government, private organizations or individuals designed to promote the welfare of persons with disabilities, such as programs designed to promote employment or provide housing for persons with disabilities. Requests to approve programs must be made in writing to the Commission.

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