Transcript Slide 1

Employees Returning to Work After Injury or
Disability – An Employer’s Rights and
Obligations
Kevin MacNeill
[email protected]
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
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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
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
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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
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
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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
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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
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Medical information for accommodation
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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?
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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
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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:
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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 MacNeill
EMOND HARNDEN LLP
[email protected]
www.ehlaw.ca