Employers have a duty to accommodate employees with disabilities
to the point of undue hardship, including facilitating the return
to work of employees who require disability-related accommodation.
An important aspect of this duty is procedural, i.e. the steps
taken to search for a reasonable accommodation. Even if an employer
ultimately cannot accommodate without undue hardship, failure to
engage in the procedural aspect of the duty to accommodate is a
violation of the Human Rights Code.
A recent decision of the Ontario Superior Court addresses the
limits on the employer's procedural duties in the accommodation
process with respect to an employee on a long-term absence from
work due to disability.
In Nason v Thunder Bay Orthopaedic Inc., the
Plaintiff, Mr. Nason, had been absent from work due to disability
for a period of approximately two and a half years from August 18,
2010 to January 22, 2013. In April and June of 2012, he reached out
to the employer to initiate return to work discussions. The
employer attempted to call the Plaintiff to schedule a meeting but
The parties corresponded in January of 2013. However, the
Plaintiff did not provide the employer with any medical information
on his fitness to return to work or any restrictions he had, nor
did the employer inquire. The Plaintiff ultimately became
frustrated with the process and asked the employer if it was going
to offer him a severance package. The employer interpreted this as
the Plaintiff not wanting to return to work and sent him a
The Plaintiff claimed that the lack of inquiry on the
employer's part into his progress and lack of requests for
updated medical information in the two and a half year period
constituted a violation of the procedural component of the duty to
The court disagreed. It found that the onus is on the employee
to not only initiate contact with the employer, but to provide all
relevant medical information. The court stated that, "A
disabled employee must communicate the physical ability,
not just the desire, to return to work". The court relied on
the principle that employees requesting accommodation must actively
participate in the process, including providing information
necessary for the employer to determine whether accommodation is
Ultimately, the court found that the termination was at least in
part due to the Plaintiff's disability and awarded him $10,000
in human rights damages.
Although this decision is encouraging for employers, it should
be treated with caution. Whether or not the employer has a duty to
inquire and request more medical information will come down to the
facts of each case. In this decision, there was evidence that the
employee had a fairly serious medical condition rendering him
unable to work. The court found it was reasonable for the employer
not to inquire into his status over the course of the two and a
half year period. However, once the employer was engaged in
discussions with the employee, whether the employer could continue
to sit back and wait is questionable. In another case, an
adjudicator could very likely rule the other way. Further, in most
cases an employer should be following up with an employee absent
from work due to disability to ensure that there is medical
substantiation for the ongoing absence.
At the 17th annual Ontario Employment Law
Conference, presented by Stringer LLP and First
Reference Inc., an afternoon Breakout Session will focus on
accommodating employees with disabilities, including practical
advice on how to prepare an effective accommodation policy and
requests for medical information. This is one of three afternoon
Breakout Sessions that attendees can choose from. The Ontario
Employment Law Conference will take place at the Corporate Event Centre at CHSI in Mississauga
on June 2, 2016. We look forward to seeing you and
helping you apply the latest employment and labour law changes. Come and learn the
As always, our goal is to provide a concise, high-level summary of the most significant legal developments affecting employers from the past quarter, and to provide practical tips and guidance on how to respond to them.
Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
Businesses and employers face exposure to a variety of claims for mismanagement or misuse of personal information by employees. Damages may depend on how sensitive the information is and how it is misused.
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).