Duty of the Employer to Accommodate Serious Illness †Free Samples

Question: Is it fair to Employers and Co-Workers to Keep a Job Open for Years for a Sick Employee? Answer: Introduction It is to be mentioned that being diagnosed with a critical illness not only has adverse effects on the employee but also on the employer of the employee. Whether an employer should keep the position of the sick employee open for years is subject to debate. In most cases employers are sympathetic and supportive of the employees when they convey the news of their illness to the employers. However some employers react negatively to the news of illness of the employees which makes the employees feel that they are a burden to the company or organization. Thesis statement The thesis statement for this research essay is that it is not fair to keep a position of the sick employee open for years. However, it is the duty of the employers to provide special accommodation to sick employees and employees with disability. If such employee fails to perform essential duties the employer can fairly dismiss the employee. Summary of legal framework In the case Scott Watts v. High Quality Lifestyles Ltd Scott Watts was employed as a live-in support worker in High Quality lifestyles. In 2004 Scott was diagnosed with H.I.V positive. It is to be mentioned that Scott had expected that his employer would be considerate and sympathetic about his as he received a similar reaction from his previous employer, MacDonalds. However after conveying the news of his illness he was suspended and later dismissed. It is to be mentioned that he was dismissed on the ground of a risk assessment that stated that there was a potential threat of transmission of the disease to a service user. There was a claim of Scott Watts that he had been a victim of direct disability discrimination. This claim was upheld in the initial hearing however the decision was subsided as the case was lost on appeal. The Employment appeal tribunal stated that the former employment tribunal had mistakenly judged whether Scott Watts had been treated less favorably than other employees who were suffering from communicable disease. According to section 9 part IV of Human Rights at work it can be stated that it is the duty of the employers to accommodate the needs of the employees as accommodating the needs of the employees can be regarded as the basic human rights. This section specifically sheds light on the issues that the employers may fa ce while they respond to the requests made by the employees suffering from disability. Section 17 of the Code of Human Rights at work states that people suffering from disabilities have the right to request for special accommodation in the workplace in order to ensure that such employees suffering from disabilities are not deterred from performing their duties and roles assigned to them (Canadian Human Rights Act, 2018). This section states that when the employee fails to deliver or perform his actions even after being provided with special accommodation or if providing special accommodation is likely to create undue hardship a decision of terminating the employees would not result in direct or indirect discrimination. However it can be stated that once employees are made aware of the need of special accommodation, it is the duty of the employer to provide the employee with special accommodation. It is to be stated that for providing special accommodation it is important to differentiate essential duties of the employer from non essential duties. According to this code it can be said that any person who fails to perform his non essential job duties, such person must be provided special accommodation by the employer. A person suffering disability must also be provided with special accommodation so that he can perform his essential duties till the point of undue hardship. However, it is to be stated that a conclusion should not be reached about the inability of a person to perform essential duties without actually testing such persons ability. The employer is required to do innovative adjustments for the purpose of providing special accommodation to the employee with disability.Such accommodation can even include adjustment of the performance standard as long as such adjustment does not create undue hardship. It is to be stated that organizations and employers are must provide special accommodation for disabled employees for the needs of the employees that are known to them. In cases when the employees fail to communicate their disabilities to their employers due to their nature of disability employers must offer special accommodation to employees who seem to be suffering from illness. However, employers are not required to diagnose illness or disabilities of employees and second guess their health status. The rights related to disability of employees in Canada are protected by the Canadian Human Rights Act and the Canadian Charter of Rights and Freedom (laws-lois.justce.gc.ca, 2018) It is to be mentioned that the Canadian Charter of Rights and freedoms is an integrated part of the constitution of Canada. Section 15, of the charter states that every person in Canada has the right to be protected from discrimination on the grounds of race, religion, sex, age, color, physical and mental disability. Thus it can be stated that governments and organizations are not allowed discriminate employees on the grounds mentioned above which includes physical and mental disability. According to subsection 15(2) of the charter it can be stated that person with physical and mental disabilities are provided improved employment opportunities. Subsection 15(2) of the act aims to safeguard and protect the rights of disabled persons related to employment. Further the Canadian Human Rights Act of 1977 aims to protect the Canadians from discrimination of any sort. Discrimination of Canadians are prohibited when they avail services or are employed under federal government, first nations government and private companies which are regulated by federal government. It is to be stated that individuals have been granted the right to protect themselves in accordance with the provisions as given in the Canadian Human Rights Act 1977 if they are subjected to any of the 11 grounds of discrimination as provided in the Act (Canadian Human Rights Act, 2018). Further it is to be stated that the rights of the employees in Canada are protected by the Employment Equity Act (Employment Equity Act, 2018). Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service has further aimed to ensure that people suffering from disability are not discriminated against (www.tbs-sct.gc.ca, 2018) . The Policy has been developed by the treasury and the public service commission to develop barrier free work environment and inclusive work environment. The purpose of this policy is to make all the individuals feel include and valued while being employed in federal services and make sure that individuals are appointed on the basis of merit and no employee is discriminated against. The aforementioned policy has been drafted in compliance with the fundamental legal principles of Canada. It is to be mentioned that the Canadian Courts have realized that special accommodation is necessary to be provided to people with special disabilities in order to ensure equal participation of all individuals in the society. Comparison and contrast of two different views in respect of the legal issue It is subject to debate whether it is fair to the employer to keep a job position open for an employee who has been absent from work for a long time due to prolonged sickness. While it can be said according to the legislative statutes and codes discussed above that employers have the responsibility to provide special accommodation to people with disabilities and make arrangements for them so that they can perform their operations, keeping a position open for a sick employee may be unfair to other co workers and employers. According to Bell (2015), it can be said that the sick employee might be a burden on the management of the organization concerned and challenging to the resources of business. However, every employer must follow certain protocols before reaching a conclusion about when to close the job position of the sick employee and when such employee is to be dismissed. The best practice for the employers is to stay in touch with the sick employee and be supportive of him throug hout his sickness. Such employer must also ask for the consent of the sick employee for the purpose of obtaining his medical records. The employers in addition must make enquiries about the sick employees prospect of returning to work for the purpose of keeping track of their progress. It has been opined by Shankar et al. (2014), that for the purpose of dismissing an employee due to prolonged sickness, an employer must make all reasonable adjustments so that the sick employee can return to work. The adjustments made by the employer for the purpose of making the employee return to work is to be judged from the perspective of a reasonable person (Shaw et al., 2016) It is up to the discretion of employees to make reasonable adjustments for sick employees who do suffer from any disability, however making such reasonable adjustments is not mandatory where he employee does not suffer from any disability. However in contrary to the aforementioned views it has been opined by Ben-Shalom (2016), that in cases where even after making reasonable adjustments for sick employees, such employees are unable to return to work, the employers must consider appointing them in any other position available in the organization. However ever if no other position or post is available the employer can fairly dismiss the sick employee due to his medical incapability. Dismissing an employee for medical incapability is only permissible when the employee has been sick for a prolonged period of time and does not show any signs of recovery to return to work. The time period in question is to be assessed by the employer from the perspective of a reasonable man and the difficulty faced by the employer to cover the absence of the sick employee is also to be considered while taking a decision to terminate the sick employee (Bronchetti McInerney, 2015). It is argued by Hill, Maestas Mullen (2016), that an employer is not required to keep a position open for an indefinite period of time as that might have detrimental effects on the co-workers of the employee and the employer. However before taking a decision of dismissing the employee, an employer must ensure that the all the investigations have been carried out in a fair manner and all the relevant information related to the medical records of the sick employee has been gathered and clarified and the sick employee has been informed about the decision of the employer. It is to be mentioned that although the Human Rights Code of Ontario prevents any discrimination of employees on the basis disability and the employers are required to provide special accommodation to the employees with disabilities under section 17 (www.ohrc.on.ca, 2018). Employers are not required to keep the job positions of sick employees who do not suffer from any disability open for an indefinite period. The employer must be aware of how much medical information he is entitled to for the purpose of assessing the reasonable time period of when the employee is expected to return to work. The employer can prepare a list of questions to be asked to the doctors for the preparation of the assessment and making reasonable adjustments and accommodations (Santuzzi et al., 2014). However, the questions prepared by the employer must not intend to reveal about the diagnosis of the employee, he can only ask for the disability or the side effects of the medication taken by the employee in or der to provide necessary accommodation and arrangements. My opinion about which of the two views is superior In my opinion it can be said that it is unethical and illegal to discriminate employees on the basis of their disabilities and to dismiss an employee for being on a sick leave for a prolonged period of time. However keeping a job position open for an indefinite period of time is also burdensome to the employer and co workers. According to me employers must maintain communication with the sick employee in consideration and try to provide all the necessary arrangement so that they can return to work. They must also wait for a reasonable time period before reaching any decision. However, if the sick employee fails to return to work and perform the essential duties even after being provided with the necessary accommodation the employer can fairly dismiss the sick employee following the procedures of the employment contract. According to the human rights code it can be said that employers are required to contact employees when they are on sick leave for the purpose of assessing the length of absence of the employees, making accommodation, changes in the prognosis and to identify whether such employee would be capable of returning to work in the near future. Conclusion Thus in conclusion it can be said that is that it is not fair to keep a position of the sick employee open for years. However, it is the duty of the employers to provide special accommodation to sick employees and employees with disability. In relation to the aforementioned statements, it is to be said that employers although are required to make all the reasonable requirements they are not required to keep job positions open in circumstances when the employee fails to perform the essential duties even after being provided with the special accommodation or when the employee is not expected to return to work in a reasonable time period. However it is to be ensured in relation to the provisions as stated in section 17 of the Human Rights Code and other statutes related to disability discrimination that no employee is to be discriminated on the basis of disability. Bibliography More about disability-related accommodation. (2018).Ontario Human Rights Commission. 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