Hastings: Disability discrimination, standards, and OHS
Disability Rights
Disability discrimination, standards, and occupational health and safety
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COUNCIL FOR EQUAL OPPORTUNITY IN |
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Introduction
The fact that CEOE is conducting this forum in itself indicates that disability is widely seen by business as presenting significant occupational health and safety (OH&S) issues. And certainly, concerns related to occupational health and safety are widely experienced by people with disabilities as barriers to equal opportunity in employment.
This is puzzling and frustrating to many people with a disability who know on the basis of their own experience, supported by relevant research, that work presents no significant health and safety issues for them beyond those involving other workers, or at least none which cannot be resolved either by appropriate OH&S practice generally, or by more specific processes of reasonable adjustment to enable people with the disability in question to work safely.
Many barriers in this area do appear to be the result either of fears which are not well founded in fact, or of a failure adequately to explore and implement appropriate OH&S practice generally and specifically in relation to workers with a disability.
However, in dealing with the group assembled here, auspiced by the Council for Equal Opportunity in Employment and comprising some of Australia's leading business organisations, I do not think I need to emphasise at any length issues of poor practice based on ignorance or unfounded fears. I take it for granted that you are committed to, and well experienced in, the elimination of such practices.
Nor is it my aim to "sell" to you the concept of people with a disability as safe, productive and reliable employees. First, to the large extent that this is true, you are capable of finding that out for yourselves. Second, people with a disability, even people with the same disability, are not a homogenous group considered in terms of positive characteristics and abilities any more than in terms of problems or difficulties.
What I shall discuss today is rather the means which discrimination law, in particular the Disability Discrimination Act (DDA), offers for resolving issues in the relationship between disability and occupational health and safety. I shall do this regarding the concepts already contained in the DDA, but more particularly in relation to the mechanisms provided for in the DDA for further development and specification of the law. In this context I shall also address some issues related to occupational health and safety issues, including medical questions and examinations, and workers compensation and insurance issues, as well as some implications for discrimination law more generally.
Existing provisions of the DDA
In my view the DDA does provide an appropriate framework of principles and concepts for resolution of issues in this area. This is notwithstanding a lack of direct or explicit provision in the DDA regarding health and safety issues (other than in relation to Infectious Diseases).
The Employment Manual which I released in March 1994 sets out the key concepts in this area, and these are also discussed in the recently released Discussion Paper and Resource Paper regarding Standards under the DDA.
1. People with a disability are entitled to equal protection of OH&S
Non-discrimination in terms and conditions of work, as required by the DDA, includes equal protection of health and safety in relation to work for people with a disability as for other employees. This includes, as necessary, effective access to relevant information and training, and any reasonable adjustments required to equipment, facilities or work procedures to ensure safety for all workers including people with a disability. In this respect, concurrent and similar obligations arise under the DDA and under occupational health and safety legislation.
2. A person who cannot work safely does not meet the inherent requirements of the job
The DDA provides that a person who cannot perform the inherent requirements of the job need not be employed and may be dismissed without unlawful discrimination occurring. In my view, it is inevitable that meeting reasonable occupational health and safety standards must be accepted as being among the inherent requirements of any job. Equally inevitably, however, this does not include restrictions or exclusions which are not justified by real risks or for which there are less restrictive alternatives reasonably available.
3. In deciding whether a person can meet inherent requirements, possible reasonable adjustment must be taken into account
In determining whether a person can perform the inherent requirements of a job, the Human Rights and Equal Opportunity Commission (HREOC) and the courts are required to consider whether the person could perform these requirements if some adjustment is made, to facilities, equipment, work practices and so on. If such an adjustment would be effective it must be made, unless it would impose unjustifiable hardship on the employer or other affected parties.
The concept of "unjustifiable hardship", as set out in section 11 of the DDA, is not restricted to financial hardship, but includes consideration of any relevant detriment or benefit, including risks to health and safety.
In the OH&S area, reasonable adjustment might involve changes to make work safer for all employees. For example, safer manual handling practices, or substitutes for manual handling, make work safer for all employees as well as removing some barriers to workers with preexisting injuries or disabilities. Other adjustments might be addressed more specifically to the needs of workers with a disability.
4. Health and safety must be protected by non-discriminatory means wherever possible.
HREOC and the courts are most unlikely to accept that an exclusion or restriction on health and safety grounds is justified by the inherent requirements of the job where a nondiscriminatory solution to the same issue is available. The other exemptions provided for in the DDA also require a close connection between the health and safety purpose to be achieved and the measures adopted.
The exemption regarding infectious diseases applies to measures "reasonably necessary" to protect public health, and clearly is not a general licence to exclude or discriminate against people who have an infectious disease.
The more general exemption for actions in direct compliance with other laws (which applies regarding all other laws until 1 March 1996, and laws prescribed by regulation thereafter) would only protect actions taken for occupational health and safety reasons where these actions are "in direct compliance" with OH&S laws.
HREOC regards this exemption as restricted to situations in which, if the discriminatory action is not taken, there will be a breach of OH&S law. Thus if there is an alternative means available of complying with OH&S requirements, the discriminatory action will not be protected.
These principles seem fairly clear. The principal problem is not actual conflict between discrimination law and OH&S (since the DDA itself incorporates provision for reasonable and necessary actions to protect OH&S); rather it is a problem of uncertainty of rights and obligations, and of the actions required to implement them.
Some of this uncertainty results from the open ended nature of current Australian anti- discrimination law, including the DDA. In using concepts such as "reasonableness" and "unjustifiable hardship", the DDA and equivalent State and Territory laws allow for flexibility in taking the circumstances of each case into account. This flexibility may often be useful, given the diversity of employment situations, and the diversity of disability and of people with a disability. However, it also has to be recognised that a flexible, common law type approach has disadvantages in not making clear in advance or in detail what the rights and obligations of interested parties are.
In the health and safety area, it is possible that a lack of certainty and clarity of rights and obligations may have some disadvantages. Employers may have difficulty in reconciling their obligations under OH&S law with those under anti-discrimination law and may be fearful of being exposed to liability under one set of laws or, worse still, both, if they make the wrong decisions.
People with a disability may continue to be excluded by unnecessarily restrictive decisions - either because the obligations of employers under discrimination law are less well understood than those under OH&S laws, or because of a decision to risk discrimination complaints rather than potentially more expensive claims under OH&S law.
Safety for all parties may be less effectively protected than would otherwise be the case: either because uncertainty leads to a failure to take necessary and reasonable measures to protect health and safety; or because a reliance on discriminatory measures, excluding a particular group of people, leads to a failure to take more effective general measures to protect health and safety for all workers and other affected parties.
DDA Standards
The DDA provides for an additional regulatory mechanism, the introduction of "Disability Standards", as a means of dealing with needs for greater certainty of rights and obligations under discrimination law, including in the employment area. DDA Standards can be made by the Federal Attorney-General, and are subject to amendment or disapproval by either House of Parliament.
Once a DDA Standard is in force it would be unlawful not to comply with it. The other side of the coin is that actions in compliance with a DDA Standard would be protected against complaint under the existing anti-discrimination provisions of the DDA.
It is not likely that DDA Standards could give detailed answers to every issue that arises in practice in every possible circumstance, including in relation to OH&S. It may even be too ambitious to expect that Standards could completely codify the relationship between discrimination law and OH&S law. However, Standards could make rights and responsibilities significantly easier to understand, comply with and enforce, including by:
setting out in more detail how the requirements of the DDA apply to particular issues in employment
giving more detailed definition to concepts which the DDA either does not define, or only defines in general terms, and
setting out more detailed criteria to guide key decisions in complying with the DDA.
The Attorney-General has requested advice on possible DDA Standards in the employment area from a sub-committee of the National Advisory Committee on Discrimination in Employment and Occupation. This subcommittee includes representatives of employers (ACCI and the CEOE), the ACTU, people with a disability, the Federal Government, State equal opportunity agencies, and myself.
In the last few weeks we have released a detailed Resource Paper and a shorter Discussion Paper as the basis for consultations up to January next year on whether DDA Disability Standards should be introduced regarding employment issues, and if so what should they say.
On the basis of responses to the papers, the Sub-committee hopes to be in a position to prepare a draft Standard (if responses indicate sufficient need and support for this) for submission to the Attorney after a further period of public consultation.
The general approach of the papers is to identify issues and provide questions as the basis for informed debate, rather than to recommend particular outcomes. The papers emphasise the Sub-Committee's view that a Standard should seek to make the existing rights and obligations under the DDA easier to understand, enforce and comply with, rather than to increase or reduce these obligations substantially.
The trade union, business organisation and disability community representatives on the subcommittee agreed at a meeting of the sub-committee in May 1995 to consult with their nominating bodies. They will determine a distribution list for these papers and a process by which they intended to consult with, and obtain feedback from, their members over the next 6 months. The Attorney-General's Department has indicated that it will take responsibility for circulation of these papers within the Commonwealth Government in consultation with the Department of Industrial Relations.
I have also provided these papers to State and Territory Attorneys-General and Ministers for Industrial Relations, and to State and Territory equal opportunity agencies.
Although, as previously stated, the Sub-committee agreed that it is the responsibility of each of the stakeholders to define their own consultative process, HREOC staff will be providing every possible co-operation and support including attending any briefings such as this one that particular sectors may request.)
The Resource and Discussion Papers attempt to identify the range of issues, not just those of health and safety, that would need to be addressed by any Standards. It may well be that following the period of consultation the Sub-committee is able to identify a number of areas in which there is strong agreement over the need to develop Standards and other areas where there is no such agreement.
DDA Standards regarding health and safety
For the reasons I have already discussed, the sub-committee considered that more specific provision on non-discriminatory practice in the health and safety area deserves consideration.
This does not mean that DDA Standards should attempt to provide a complete code on health and safety issues in relation to all disabilities, or any particular disability, in all circumstances, but it may be that DDA Standards could at least provide a clearer framework for parties making decisions in this area.
This might include specification or guidance on the following issues identified in the papers we have released:
What level or types of risks would justify measures which limit equal opportunity for a person with a disability?
The Equal Employment Opportunity regulations under the Americans with Disabilities Act use a test of "direct threat" in this area, which is intended to prevent people with a disability being disadvantaged or excluded because of unreal fears or remote possibilities, while allowing genuine concerns to be addressed. This might be an appropriate model; or it might be that some types of risk can be more precisely specified as justifying or not justifying particular restrictions or exclusions.
What evidence should be required or permissible, and who should judge, that the activity in question involves such a risk regarding the person with a disability?
Consideration is needed of whether actions taken in response to health or safety concerns should be permitted only if they are both objectively necessary and the least restrictive means available for the purpose; or if such actions are reasonable in the particular circumstances; or some other test. The key questions here are how much margin for error should be given, and how can this be done without undermining protection against discrimination.
The papers also ask for submissions more generally on what provision should be made by DDA Standards in relation to health and safety issues.
Pre-employment Medical Examinations.
A group of issues related to those of occupational health and safety concern pre-employment medical inquiries and examinations. The Resource and Discussions Papers we have released ask a number of questions regarding what medical questions and examinations should be permitted or prohibited by DDA Standards.
Not all employers use pre-employment medicals, preferring to save the expense and rely on other means of assessing fitness for work or other purposes for which medical. evidence might be used. However, some employers clearly wish to use medical questions and/or examinations, for purposes including:
determining fitness for work and ability to perform job requirements;
determining any health and safety issues and responses to these;
identifying reasonable adjustments needed either to meet health and safety issues, or to enable a person with a disability to perform the requirements of the job;
determining workers' compensation liability and superannuation entitlements.
Some employers may also use medical questions or examinations on the basis that this is part of routine pre-employment procedure, rather than because of a decision to use the information for specific purposes.
Medical examinations and questionnaires to which a person with a disability must (if answering truthfully) give significant numbers of answers which are clearly not the preferred answer, may serve as a significant barrier to people with a disability. Such questions may make the person with a disability, and other people involved, feel that people with a disability do not belong in the workplace. There may also be fears of discriminatory use of the information and possible breaches of confidentiality in the case of sensitive information.
The U.S. Equal Employment Opportunity regulations provide that no medical inquiries or examination are permitted until a conditional job offer has been made: before this, applicants may only be asked to explain or demonstrate how they can perform job functions.
(Demonstration of ability to perform job functions may cover some issues which would also be covered in a medical examination but clearly is more directly focussed on the particular job requirements.)
Following a conditional job offer, a medical examination is permitted under the U.S. regulations. Such a medical examination is not required to be restricted to job related issues; however, any decision to exclude a person with a disability on the basis of such an examination must be based on criteria which are job-related and consistent with business necessity.
This is one possible approach. However, the Resource Paper also discusses the need to avoid measures which would prevent open discussion of disability related issues for purposes of identifying reasonable adjustments and addressing fears about the effects of a person's disability.
The papers identify a number of issues to be considered in this area, including:
should medical questions and examinations be permitted before a job offer is made?
should routine medical questions or examinations be permitted, or only in specific circumstances showing a need for such inquiries?
when, if ever, would the fact of a person's disability justify a medical examination when such examinations are not conducted as a matter of routine for all applicants?
When if ever, should an employer be able to make inquiries or conduct medical
examinations to determine whether a person has a disability, including disabilities related to infectious diseases?
should medical questions and examinations, if permitted, be restricted to examining abilities relevant to the inherent requirements of the job?
should medical questions and examinations be permitted in relation to other specified issues such as workers' compensation, superannuation, occupational health and safety issues and identification of reasonable adjustments?
- should employers be permitted to conduct general medical examinations and be restricted only in the use to be made of the results of such examinations?
what provisions should DDA Standards contain regarding confidentiality of medical records?
should DDA Standards make any provision, and if so in what terms, on what happens if answers to medical questions are later found to be false or misleading?
Issues regarding past history of disability or workers' compensation claims
There is a number of complex issues regarding the relation of the DDA to workers' compensation entitlements, which have not yet been the subject of HREOC or court decision under the DDA.
Issues of collection and use of information regarding a person's history of disability or preexisting injury, including previous workers' compensation claims, may overlap with health and safety issues.
Employers may expect to be able to use such information:
in determining health and safety issues (including decisions whether a person can safely perform a work function, and what if any adjustments in equipment or work practices may be possible and necessary to ensure that the person can work effectively and safely, i.e. to conform both with anti-discrimination obligations and with occupational health and safety legislation);
in determining compensation entitlements (including questions of when an injury occurred, who was responsible, and whether any issues of fraudulent claims are involved).
People with a history of disability, however, will expect protection against discriminatory exclusion from, or limitation of, work opportunities or entitlements based on this history.
Discrimination because of a disability which a person had in the past is unlawful under the existing provisions of the DDA. However, there may be a need for clarification of what .discrimination means in this context and what the effect is of relevant exceptions under the existing provisions of the DDA.
Issues of exclusion or limitation of workers' compensation benefits regarding particular types or levels of disability are reloevant here, as are limitations which are general in form but impact disproportionately on people with a particular disability.
These matters have been raised by a number of complaints under the DDA, but have not as yet been the subject of substantive HREOC or court decision.
In some cases, the actions complained of have not proceeded to substantive decision because they have clearly been covered by the exemption in the DDA for actions in direct compliance with another law, that is, the relevant State workers' compensation laws. As already noted, however, this general exemption expires on 1 March 1996. After this, the laws in question will be exempt under the existing DDA provisions only if exempted for this purpose by regulation. Consideration of issues regarding possible DDA Standards in this area may assist in determining whether such extended exemptions by regulation should be granted. Resolution of issues in this area may therefore have some urgency.
Other issues
The Resource Paper and Discussion Paper on possible DDA Standards on employment also raise a wide range of other issues regarding non-discrimination in selection processes; terms and conditions of employment; promotion, training and other benefits; and dismissal. Issues are also raised of how Standards might give greater definition to concepts of inherent requirements, unjustifiable hardship and reasonable adjustment.
I encourage your input to the consideration of these issues. I believe that development of Standards under the DDA offers a major opportunity for more effective implementation of non-discriminatory employment practice throughout Australia .
Elizabeth Hastings
Disability Discrimination Commissioner
22 August 1995