The Alberta Human Rights Act prohibits discrimination at work based on one or more protected grounds, including physical and mental disability. An employer cannot terminate, refuse to hire, or otherwise negatively impact an employee because of their disability, injury, or illness.
How does the Alberta Human Rights Act protect employees with a disability, injury, or illness?
What you need to know
- Disability covers a broad range of conditions, both physical and mental.
- Employers have a duty to accommodate employees with disabilities to the point of undue hardship.
- Employees requesting accommodation for a disability must inform their employer of their need for accommodation. This often means providing medical information.
- Employers must make reasonable efforts to accommodate employees with disabilities to the point of undue hardship.
- An employee cannot refuse a reasonable solution just because they prefer a different kind of accommodation.
- Employees, employers, and trade unions (if there is one) must cooperate in the accommodation process.
- Employers have a duty to inquire when they are aware or should reasonably be aware that their employees have a disability impacting their work.
Physical and mental disability
Physical and mental disability are protected grounds under the Act. The Act also protects against perceived disability, where others see a person as having a disability and treat them in a discriminatory way.
It is not possible to provide a complete list of conditions normally considered to fit these definitions. The disabilities listed below are examples only.
A physical disability is any degree of physical disability, infirmity, malformation, or disfigurement caused by injury, birth defect, or illness. It also includes relying on a guide dog or service dog. Normally, minor or seasonal illnesses such as colds or flus are not physical disabilities under human rights law. Some examples of physical disabilities include:
- epilepsy or seizures
- vision loss, hearing loss, and speech impediments
- heart conditions
- shoulder or back injury
- Crohn’s disease
- spinal malformation
- loss of body parts such as fingers
- muscular atrophy
- cerebral palsy
A mental disability is any mental, developmental, or learning disorder. The cause or duration of the disorder does not matter. Some examples of mental disabilities include:
- anxiety disorders
- post traumatic stress disorder (PTSD)
- autism spectrum disorder (ASD)
- attention deficit hyperactivity disorder (ADHD)
- obsessive compulsive disorder
Drug dependence, alcoholism, and other addictions may be a physical or mental disability.
Refer to the Duty to Accommodate human rights guide for more examples.
Employees who request accommodation must inform the employer of their need for accommodation. The employee must provide enough information or documentation for their employer to understand what type of accommodation they need.
For physical and mental disabilities, employees often must provide documentation from medical professionals. However, they do not need to disclose their specific diagnosis to their employer.
For more information, refer to the Medical information page.
Employers have a duty to accommodate an employee’s disability to the point of undue hardship. This may mean:
- rearranging workloads so that another worker handles duties an employee with a disability cannot. For example, an employee recovering from shoulder surgery cannot lift more than 10 kilograms, temporarily. Another worker could do the heavier lifting while the employee with the disability assumes responsibility for more cleaning and paperwork.
- improving a building to accommodate employees with disabilities. For example, building a ramp to a building entrance to make it wheelchair accessible.
- altering job responsibilities, temporarily or permanently, for an employee suffering from a mental condition
- time away from work when an employee is medically unable to attend
Sometimes, an employee’s disability may impact their work performance. Employees may not willingly provide necessary information or be aware of how their disability is affecting their work. For example, an employee with a mental condition may not be aware of the onset of the illness or a relapse. An employee with an addiction may not acknowledge or understand their addiction and may deny their illness. Employers have a further duty to inquire when they are aware or should reasonably be aware that a disability is impacting an employee’s work. Employers can fulfil this duty to inquire by:
- talking with the employee about their ability to work
- looking into any disclosures or comments the employee makes about their disability
- asking for more information when the employee makes a request for accommodation
For example, an employee often shows up to work visibly drunk and smelling of alcohol. The employer knows the employee is also drinking at work. In this case, an employer must inquire into the employee’s suspected alcohol addiction and take steps to learn more or accommodate them. The employer cannot terminate the employee without taking steps to accommodate them.
For more information, read the Duty to accommodate at work page.
Can an employer ask a job candidate about their disability, age, family status, marital status, etc.?
An employer cannot ask questions that relate to a protected ground. Doing so is discrimination.
In job applications, interviews, or advertisements, employers cannot ask a job candidate for information related to a protected ground, unless it is essential to the position. For example, employers cannot ask about past or present:
- physical or mental conditions
- workers’ compensation claims
- sick leaves
- plans to have children
- sexual orientation
Employers also cannot ask job candidates to provide information about the general state of their physical or mental health, appearance, height, weight, or family status.
The exception is where the question relates to a bona fide occupational requirement (BFOR), such as a firefighter being physically fit. The employer should clearly state these requirements in the job description or advertisement.
The Commission has an information sheet called A recommended guide for pre-employment inquiries. The document lists recommended and not recommended questions about topics such as languages, age, disability, family status, and ancestry or place of origin.
If a job candidate has the experience and skills for the job, there should be no “special tests” to see if they have the capacity to do the job. However, an employer may ask a candidate if they can safely complete the duties as outlined in the job description.
Any test for dexterity, medical exams for physical ability, or stress‑handling tests must be job‑related. Employers should advise that they require candidates to pass such job-related tests or exams once hired. Read the Medical information page to learn more.
An employer may have policies on drug and alcohol testing. On its own, a requirement to take a drug or alcohol test does not violate the Act. It may be discrimination if an employer targets an employee or group of employees for testing because of a protected ground. Employees should check their workplace policies and the consequences for not complying with a drug or alcohol test.
A drug or alcohol dependency or addiction is a disability under human rights law. An employer has a duty to accommodate an employee or job candidate with a disability to the point of undue hardship. An employer’s duty may be triggered by an employee returning a positive (or non-negative) test result due to a drug or alcohol dependency or because of a prescription medication. Employees should also check their workplace policies about disclosing disabilities and requesting accommodation. Some policies may require an employee to disclose a drug or alcohol dependency before there is a requirement to test.
An employee or job candidate has a disability that increases health or safety hazards in the workplace. Does an employer have to hire or continue to employ them?
Depending on the situation, employers do not have to hire or continue to employ anyone whose disability notably increases the risk of health or safety hazards to themselves, other employees, or the public. For example, an employer cannot expect someone who has epileptic seizures not fully controlled with medication to safely perform a job working on a scaffold or driving a truck. It is up to the employer to show that the employee’s disability would threaten the safety of that employee or others at the worksite.
Employees need to report an absence from work as soon as possible and if at all possible. An employer may request that an employee make reasonable attempts to get a medical note to explain the absence. Employees should check their own workplace policies about reporting absences due to disability, injury, or illness. Employees can expect some contact from their employers during a lengthy absence, but not so much that it could be harassment.
Under Alberta’s Employment Standards Code, employers must hold a position for an employee on leave due to illness or injury for up to 16 weeks. However, human rights law says this may be longer depending on the employee’s disability, whether an employee has revealed supporting medical information, and whether the employer has taken steps to accommodate an employee’s needs to the point of undue hardship. For more information, employers should get legal advice.
When disability is one of the reasons for workplace discipline or potential termination, the employer must consider the employee’s medical information or documents about their disability or absence. The employer cannot simply discipline or terminate an employee based on the employee’s absence record. Employers have a duty to accommodate employees with disabilities to the point of undue hardship. For more information, refer to the Duty to accommodate at work page.
An employee who feels they are being terminated or disciplined for a disability-related absence should provide the employer with medical information to support their claim. An employee with a mental health or addiction issue that is affecting their ability to work should get help from a doctor or addictions expert. They should also provide information about their disability to their employer as soon as possible.