Until a recent decision of the Québec Court of Appeal, there was no requirement for employers to consider Charter issues (and in particular the duty to accommodate) when dealing with an employee's right to come back to work after recovering from an occupational injury. When asked by the workers compensation board (called the "CSST" in Québec) whether there was a job available in the business that conformed to the workers limitations, the employer was not required to analyze all the possible jobs. This differed from workers with disabilities when an analysis of all jobs was required in accordance with the duty to accommodate.
Workers returning to work with functional limitations clearly had a disability under the common understanding of the term, but the statute was read as constituting an accommodation in and of itself.
This has now all changed. In Commission de la santé et de la sécurité du travail c. Caron, 2015 QCCA 1048, it was held that human rights obligations on employers, including the duty to accommodate, must now be overlaid onto the statutory scheme. In essence, this means that employers must now treat workers returning to work with limitations in the same way, regardless of whether the limitation was caused by their employment or not. This means that both federally-regulated and provincially-regulated employers in Québec will need to have more consideration of the duty to accommodate and possible jobs that employees with limitations might be able to perform.
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