Both the short- and long-term effects of cancer and its treatment may affect some cancer survivors’ work abilities and/or productivity. They may be concerned about whether or not they can return to their previous jobs or workplaces. Human rights law offers protection for employees with cancer. However, this protection requires employers, cancer survivors and unions to cooperate. Healthcare providers often play a critical role in this process because of the need for medical information about restrictions, limitations and any recommended accommodations.
The information about Canadian laws on this website is an overview of some rights and responsibilities. Human rights law is often quite complex to interpret, and it can change. Also, there are separate human rights laws in each province or territory. For more information on services and resources that can further clarify provincial human rights policy see legal resources on human rights from our Survivors area. See also the human rights commission websites for all provinces/territories across Canada.
Basics on human rights
(Adapted from the BC Cancer Agency‘s Cancer and Returning to Work: A Practical Guide for Cancer Patients. (PDF))
Essentially, Canadian human rights legislation provides or states that an employer has a duty to reasonably accommodate on an ongoing basis those with a disability unless the employer can prove “undue hardship.” The “duty to accommodate” means that employers must implement the necessary measures that will allow employees with limitations due to illness or disability to work to the best of their ability.
What is undue hardship?
An example of undue hardship for an employer might be where the cost of providing an accommodation would be so high as to threaten the organization’s survival. Other factors that are used to assess undue hardship for employers are health and safety risks, size and flexibility of the workplace, disruption of existing collective agreements, morale of other employees and interchangeability of workforce and facilities. Undue hardship does not include inconvenience or disruption, or belief by the employer that the cost will be too high. It requires a degree of effort by the employer to explore and make an accommodation. The specific circumstances of the employer will also influence whether undue hardship is an issue. For example, smaller employers may have fewer resources or jobs available to provide accommodations. As well, the employer is not obligated to create an unproductive position. The employee has to be able to do the essential job duties of an existing, restructured or newly assigned position. Once an employer has found a reasonable solution, their legal duty to accommodate is done.
Is cancer considered a disability protected under human rights?
Disability, for the purposes of work accommodation, can be the consequence of a disease, injury or condition that impairs one’s ability to perform their normal functions in life and work. It can include those who have, or are perceived to have, a mental or physical disability, whether visible or invisible, with some degree of permanence. For example, this does not include a brief event such as a headache but could include cognitive impairment related to a head trauma that interferes with concentration and productivity.
Who is responsible for finding reasonable accommodation?
Although the primary responsibility for the process of reasonable accommodation is with the employer, the employee and unions (if applicable) also have a duty to cooperate and be reasonable in the accommodation process. It is a legal right, but requires the employee to cooperate with the process.
The employee, employer and union all have an interest in achieving a resolution. Often, the best solutions are achieved when those involved cooperate with one another.1
The employee has a duty to accept a reasonable accommodation even if it is not the preferred solution. If the solution proposed by the employer is reasonable and the employee declines or the employee fails to cooperate in finding accommodation, the employer does not need to do more and this could result in termination of employment for the employee. If an employee refuses an offer of alternative employment, the employee needs to provide a reasonable explanation for refusal. In general, an employee is not expected to accept an accommodation involving significantly lower wages, benefits, job security and opportunities for advancement unless the only available job that is available satisfies reasonable accommodation. The employee’s responsibilities include the following:
- Providing sufficient information to the employer so they are able to adequately assess how a reasonable accommodation can be made.
- Being cooperative and assisting in identifying and implementing an appropriate accommodation.
- Not expecting a perfect accommodation.
- Supplying job-relevant medical information. This means non-diagnostic information only, such as functional limitations and current capabilities.
- More info: Webinar Developing Effective Workplace Accommodations – Survivor, Provider and Employer Perspectives by Dr. Mary Stergiou-Kita
- Designing workplace requirements and standards that do not discriminate against those with a disability.
- Requesting medical information from the employee’s doctor concerning the employee’s disability-related workplace needs.
- Accommodating individuals to the point of undue hardship. The first priority is the modification of the duties and practices related to the present position as recommended by medical reports.
- Showing that attempts to accommodate were serious, conscientious and genuine – “in good faith.”
- Employers must demonstrate their best efforts in ensuring that discrimination or harassment based on disability is not permitted on the part of either the employer or by co-workers.
- Representing the employee.
- Working with the employee and the employer in accommodating the worker.
- Accepting some modifications or exceptions to what is outlined within the collective agreement.
- Representatives must not interfere with reasonable efforts by the employer to accommodate the employee.
For more information: In the survivor area of our website, we provide answers to questions that cancer survivors frequently ask about their rights under the law. We also provide resources that may be available in the community to help your patient.