Canada: Accommodating Employee Disability - Not All That Painful

Last Updated: September 11 2014
Article by Carissa Tanzola

It can be challenging for an employer to navigate the obstacles presented when attempting to accommodate an employee with a physical or mental disability. Unfortunately, because the legal obligation to accommodate necessitates an individualized approach there is no "one size fits all" formula. However, the process doesn't have to be painful.

Understand the Legal Landscape

Whether the disability is as a result of a workplace accident or a weekend football mishap - the duty to accommodate remains the same.

A. The Human Rights Code – The Most Inclusive Approach

The Ontario Human Rights Code ("Code") requires an employer to accommodate an employee with a disability "to the point of undue hardship." This means considering the employee's restrictions and limitations and either modifying the employee's current job or finding other work as close as possible to th e employee's pre-injury job, within the scope of the employee's abilities.

There are four fundamental steps to accommodation:

1. Consider whether a disability exists.

"Disability" is defined broadly under the Code to include any degree of:

  • physical disability, infirmity, malformation or disfigurement caused by an injury or birth defect or illness
  • mental impairment or developmental disability
  • learning disability or mental disorder, or
  • injury or disability for which benefits are claimed or received under the Workplace Safety and insurance Act ("Act")

The definition of "disability" does not consider where the injury or illness occurred; only that it exists. A common cold or stress (which does not otherwise trigger a disability, such as depression or anxiety) is not a "disability" under the Code.

2. Complete a procedural analysis.

In most cases, an employer becomes aware an employee has a disability when the employee asks for accommodation. However, in some cases it may be incumbent on the employer to make a proactive inquiry. For example, where the employer observes a dramatic change in the employee's behaviour causing a disruption in the workplace, the employer may need to inquire whether the employee requires accommodation.

Once it has been established that an employee has a disability, the employer must consider what can be done to facilitate the employee's continued participation in the workplace. This procedural analysis typically begins with an inquiry into the nature of the disability ( e.g. physical or mental), the employee's limitations (e.g. no lifting of more than 10lbs) and for how long the limitations - and thus the need for accommodation - may last.

Employers are entitled to ask for and receive timely, accurate and relevant medical in formation. A doctor's note that simply says "patient cannot return to work for 3 months" is not sufficient, nor can an employee refuse to provide information about his limitations on the grounds the information has already been provided to the WSIB or to a private insurance carrier. In fact, decisions made by the WSIB or a private insurance carrier are largely irrelevant to an employer's duty to accommodate.

Where the information from the employee's doctor is insufficient, an employer might consider retaining the services of its own doctor or asking the employee to attend an independent medical examination paid for by the employer. When all else fails, an on-going failure to cooperate can lead to discipline or the denial of the accommodation request.

If it is not possible to modify the employee's regular job, other similar jobs at the same wage rate must be considered. The employer must also explore if the tasks of multiple positions can be combined or bundled. In essence, the duty to accommodate requires the employer to offer work that is as similar as possible to the employee's pre-injury job.

Important to note - an employer is not required to bump other employees out of their positions or create an new position if that position is not necessary in the workplace. In a unionized workplace, if suitable accommodation does not exist within the employee's bargaining unit the employer is required to look outside the unit, and the union is required to cooperate in the process. However, accommodation outside of an employee's bargaining unit is generally viewed as a "last resort".

3. Complete a substantive analysis.

Although closely related to the procedural analysis, the substantive analysis considers the specific modifications that may be required so the employee can fully participate in the workplace. This may include decreased productivity standards, reduced hours, increased breaks and the ability to sit and stand as needed. To this end, while an employee's input into the accommodation process is important, the employee does not have the right to insist on a more favourable position, and any absence resulting from an employee's refusal to work in an otherwise suitable position is culpable. Finally, unless the cost of a modification will significantly impact the viability of a business, the cost of accommodation will not be accepted as "undue hardship".

4. Follow-up regularly.

Once an accommodation plan has been established, the employer should remain in regular contact with the employee and request updated medical information and reports to ensure that as the employee's disability changes (if at all) the accommodation plan is amended accordingly. Ideally, the employee should be working his way back to his pre-injury position.

B. The Workplace Safety and Insurance Act – Not an Alternative to the Code

Where an employee is injured in the course of employment, and the employer is subject to the obligations of the Act (the majority of employers are required, or opt, to have coverage), the Act requires the employer to provide "suitable modified duties". This standard is not as high as the "duty to accommodate" under by the Code.

Usually, "suitable modified duties" means adjusting hours of work, productivity standards and exploring other positions on the same shift at the same wage rate. The Workplace Safety and Insurance Board ("WSIB") does not generally require an employer to make costly modifications to the workplace or to bundle the tasks of multiple positions in order to meet its obligations under the Act.

Where both the Code and Act apply, it is advisable that an employer seek to accommodate the employee's disability to the point of undue hardship – in other words, the higher of the two standards. Failure to do so can expose the employer to whatever costs are associated with an employee receiving WSIB benefits and any liability arising out of a breach of the Code.

Practical Tips

The duty to accommodate, while at times daunting, can be managed to the benefit of both the employer and employee. To simplify the process remember the following tips:

  1. Each case must be evaluated and analyzed on its own merits.
  2. Accommodate to the point of undue hardship for all cases of disability, regardless whether the WSIB is involved.
  3. Consider every suitable or potentially suitable workplace position, including bundled tasks.
  4. Don't rely on the decisions of the WSIB or an insurance carrier.
  5. Continue to seek out updated, meaningful medical information.
  6. Work with the employee (and union), to explore and implement appropriate accommodation.
  7. When in doubt, reach out to experienced employment counsel who will help you navigate through the process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Strigberger Brown Armstrong LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Strigberger Brown Armstrong LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions