Employees Returning to Work After Injury or Disability – An Employer’s Rights and

Obligations

Kevin MacNeill

kmacneill@ehlaw.ca

September 17, 2014

www.ehlaw.ca

Introduction

Issues in relation to accommodating employees with disabilities and assisting them to return to work can be challenging and complex

Getting employees who can work back to work is beneficial to both employee and employer

Return to work process requires cooperation from employee and union (where applicable)

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Today’s Session

Overview of statutory and other legal obligations affecting “return to work” decisions Workplace safety and insurance legislation Occupational health and safety legislation Human rights legislation Duty to accommodate

Medical notes or certificates Applying the principles – some factual scenarios

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Workplace Safety and Insurance Act

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Workplace Safety and Insurance Act

Work-related injury or illness – the Workplace Safety and Insurance Act requires employee and employer to work together to ensure “early and safe return to work” (“ESRTW”)

Goal is an early return to suitable employment Functional Abilities Form used for planning ESRTW Must re-employ injured employee to:

Pre-injury job without accommodation; Pre-injury job with accommodation; or Other suitable position

Occupational Health and Safety Act

Occupational Health and Safety Act

Establishes a variety of obligations on employers to take all reasonable precautions to protect the health and safety of workers

Creates various obligations for the reporting of accidents depending on the seriousness of incident

Obligations under OHSA and WSIA are separate and must be complied with independently

Includes requirement to report “occupational illness”

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Human Rights Legislation

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Human Rights Legislation

Human Rights legislation prohibits discrimination in employment on the ground of “disability”

“Disability” has been broadly defined Applies whether or not disability is work-related Employer required to accommodate employee’s disability

to the point of undue hardship Employee (and union) required to cooperate in

accommodation process

Duty To Accommodate

Duty to Accommodate

Employers are under a positive obligation to accommodate the needs of employees with disabilities to the point of “undue hardship”

Duty to accommodate includes both a procedural and a substantive component – process can be as important as outcome!

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Duty to Accommodate

Employee’s obligations Employees have a duty to facilitate employer’s efforts to

offer accommodation (and so does the union) Obligation to identify restrictions/limitations Obligation to keep employer informed of health status and

ability to perform work Failure to cooperate in accommodation may result in

termination being upheld, even when point of undue hardship has not been reached

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Duty to Accommodate

Duty to accommodate satisfied where There is no evidence of employee need for

accommodation to resume regular attendance No accommodation is possible due to severity of disability There have been a number of failed attempts to

accommodate in the past The employee has failed to act reasonably in the

accommodation process

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Initial (and Ongoing) Consultation with Employee/Union

Employee/Union must be involved in accommodation process

A decision must NOT be made without consultation Review employee’s responsibility and obligation to

actively participate in accommodation process Invite participation of Union(s), if applicable

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Medical Information

Medical Information

Medical information for accommodation Not only permitted – required! Employees have a duty to cooperate Employer not required to take request at face value Employer entitled to more detailed information

Medical confirmation of necessary accommodation Prognosis, not diagnosis Medical limitations

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Medical Information

“What is required in the first instance… is the minimum sufficient objectively reliable information necessary to satisfy a reasonable employer that the employee was or is in fact absent from work due to illness or injury, and is entitled to any collective agreement benefits in that respect.”

“In the case of an ongoing absence, the employer is also entitled to an indication of when the employee is likely to be able to return to work safely, and in

appropriate circumstances to any restrictions or accommodation that may be required in that respect.”

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Return to Work and Accommodation How Much Information is Enough?

Employees have a duty to cooperate The employer is entitled to know about

The need to be accommodated Prognosis for return to modified/regular duties Medical restrictions/limitations

Employer has a duty to consider this information Employee’s failure to provide medical information may

absolve employer of duty to accommodate

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Accommodation Decision

Must systematically review and document ALL options Can the employee be accommodated in substantive

position? Can the job be modified? Can the work methods be altered? Can the workplace be modified? Can a policy be changed? Can a product or piece of equipment be purchased? Is it necessary to obtain a service?

Is reassignment a possibility? Inside bargaining unit? Outside bargaining unit? Review above questions

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Make Individualized Decision Based on Objective Evidence

In assessing all of the factors in the accommodation decision, would accommodation cause undue hardship?

Case by case analysis - consider Safety Financial cost Impact on other employees Size of employer’s operations

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Implementation and Follow-up

Document reasons why accommodation was implemented

Accommodation may not be what employee wanted or expected Entitled to reasonable accommodation – not perfect solution Employee not entitled to “dictate” the accommodation (or

position)

Important to monitor (work performance and medical status) and adjust accommodation, if necessary

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End of Accommodation

Duty to accommodate satisfied where There is no evidence of an employee’s ongoing need for

accommodation Retain accommodation file

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Some Factual Scenarios

Fact Scenario #1

Employee diagnosed with anxiety disorder, depressive disorder and chronic lymphocytic leukemia – refused to participate in performance appraisal and went off sick

Most recent medical information indicated that she was capable of performing her full duties, but employee insisted she was unable to return to work

Employer provided three options but employee continued to insist on a specific form of accommodation

Employee was terminated

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Baber v. York Region District School Board (2012 – HRTO)

Findings: Confirmed that an employee who seeks workplace

accommodation

“has a duty to co-operate in the accommodation process by providing her employer with a reasonable amount of information about her physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship.” Lack of medical information supporting claim of unfitness to work

meant that the employer’s duty to accommodate was not triggered Claim to specific form of accommodation rejected; complaint

dismissed

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Fact Scenario #2

Employee suffered lower back injury while at work; off work for 3 months (received WCB benefits)

Returned to work on “modified duties” for a period of 3 months, then left on vacation

Upon return from vacation, employee suffered recurrence of injury and left work (has been off work since - > 24 months)

Employer wants employee to return to work but employee claims he is disabled from his own job and from doing modified work; conflicting medical information

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Toronto (City) v. C.U.P.E., Local 416 (2002 – ON LA)

Findings: Employee worked as a Labourer/Sanitation for the City

of Toronto – had been off work from January 1995 Union filed a grievance alleging wrongful denial of LTD

benefits Issue – whether grievor was

Totally disabled from own occupation (first 24 months) Totally disabled from any occupation for which he is qualified

(after 24 months)

Grievance denied – onus on union to establish breach of collective agreement; medical evidence not conclusive

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Fact Scenario #3

Employee has been off work on sick leave (or WSIB) for a period of 3 years

Employer has requested up-to-date medical information, which indicates that the employee’s return to work date remains uncertain

Employer has let employee know that his employment status is being reviewed and is considering terminating employment

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Ontario Human Rights Commission v. Jeffrey (2007 – Ont. Div. Ct.)

Findings: Application of the principle of frustration of contract to

employment contracts modified by human rights legislation and the duty to accommodate

Where no reasonable prospect of employee returning to work, even with accommodation, termination for frustration permissible

Employer’s conduct in terminating employee assessed against standard of undue hardship (which will vary according to size and nature of employer’s business)

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Unionized Workplace

Where collective agreement contains a “deemed termination” clause McGill (SCC – 2007) - such clause is prima facie

discriminatory, but can be justified (on the three-part test set down in Meiorin)

Deemed termination clause cannot be used to justify automatic termination – some consideration must be given to accommodation

Court will look at all the steps taken by the employer during the entire period of absence in assessing duty to accommodate and undue hardship

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Common Mistakes

Failing to fairly consider all requests

Failing to ask for further details when information provided is inadequate or insufficient

Failing to consider all accommodation possibilities

Failing to train management on accommodation issue

Failing to involve employee in accommodation process

Failing to make an individualized decision, based on objective evidence

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The Potential Costs of Getting It Wrong

Fair v. Hamilton-Wentworth District School Board (OHRT – 2012)

Facts: Employee of almost 16 years developed anxiety disorder

in 2001 due to stressful nature of employment Discharged from duties after hospitalization in 2002 Diagnosed with post-traumatic stress disorder and

depression LTD Benefits were terminated after 2 years when

assessment deemed employee “capable of gainful employment”

Employer stated no positions available involving less responsibility and terminated employment

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Fair v. Hamilton-Wentworth District School Board (OHRT – 2012)

Findings: The employee fulfilled obligation to co-operate fully in the

accommodation process The employer failed to “actively, promptly and diligently” canvass

possible solutions to the employee’s need for accommodation

Remedies: Reinstatement to suitable employment Training to prepare for return to work Calculation of 10 years worth of lost wages $30,000 for injury to dignity, feelings and self-respect Judicial review heard March 2014

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Questions?

Kevin MacNeillEMOND HARNDEN LLP

kmacneill@ehlaw.ca

www.ehlaw.ca