Duty to Accommodate
For most employers who do not have internal expertise in HR, dealing with a sick or injured employee’s return to work can be a minefield. No matter what policy you have in place, or collective agreement, the Human Rights legislation comes into play.
Recently, one of our clients terminated an employee after three years of illness, which started as a minor illness and eventually, and sadly, became a condition that prevented the employee from doing any part of her job. During those three years , our client continued to pay the employee even for the days missed, due to illness. The Company kept her job open for her and even provided raises and bonuses because she was a valued and long-term employee. Eventually our client had no choice but to replace this employee because she could not fulfill any part of her job responsibilities, as evidenced by the medical information provided by the employee’s doctor. By mutual agreement, the employment relationship was terminated and the employer paid the termination pay as prescribed by the ESA. Two weeks later, the employee sued the employer for wrongful dismissal and launched a Human Rights Complaint.
Canadian employers have an obligation to accommodate workers who have an illness or injury. A proactive approach to that obligation is by establishing a disability management program with a return to work policy and process.
An early and safe return to work program allows the employee, when medically able, to perform the essential duties of the job and to return the employee safely to work following an illness or injury. This will be done by recommending suitable employment that is available and is consistent with the employee’s functional abilities.
The employee must be medically able to perform the essential duties of his or her pre-injury employment or to perform suitable, available work. Suitable work is work which is available, and has appropriate value. Accommodation may include job restructuring, reassignment to open positions, retraining for alternative positions or job bundling if that would not constitute undue hardship for the employer. It is not necessary to create a new job that the employer does not need in order to accommodate an employee, although combining elements of several existing positions may be an option to meet the duty to accommodate. At the end of the day, the employee must be able to perform a useful and productive job for the employer.
When looking to accommodate an employee in a vacant position, the employer is not obligated to promote an employee to meet the duty to accommodate. The vacant position should be equivalent, or can be less equivalent, to the employee’s pre-disability position.
Employees and unions also have obligations with respect to the duty to accommodate. Employees must provide sufficient medical information regarding their functional abilities to the employer in order to facilitate accommodation appropriate to the individual employee. Employees must also cooperate with the employer’s reasonable efforts to accommodate them; employees do not have the right to turn down meaningful work that falls within their functional abilities.
Unions are also obligated to facilitate the accommodation needs of their members by supporting the reasonable efforts of the employer to accommodate an employee. In some cases, this may even mean circumventing seniority rights of other members to allow for a reasonable accommodation. The rule of undue hardship also applies to unions. Human Rights legislation will supersede provisions of a collective agreement, unless an undue hardship can be proven.
When determining if an accommodation would cause an undue hardship, three factors should be considered; cost, availability of outside funding, and health and safety. It is not enough to simply say it would cost too much, or the accommodation would be a health and safety risk, there must be evidence to support those assertions.
When making the decision to terminate an employee who has been absent from work due to illness or injury after prescribed time limits allowable under provisions in collective agreements, employment contracts or Worker’s Safety & Insurance Act (WSIA), employers must still address their duty to accommodate under Human Rights legislation. Remember, just because one piece of legislation or contract allows you to do something, another piece of legislation may prevent it.
Although it should always be the goal to return an employee to work as soon as possible, it is also important to note, that in some cases just allowing the employee to remain off work can be considered an accommodation of their functional abilities, and would not likely be seen as an undue hardship on the employer.
Know your rights and all the pertaining legislation, before you proceed!