Canadian Employment Law Today

CASE IN POINT: Disability Accommodation 4 Canadian HR Reporter, a Thomson Reuters business 2014 Accommodating employee disability — It's not all that painful Employers must comply with both human rights and workers' compensation legislation, but keeping it simple will make accommodation that much easier BY CARISSA TANZOLA I t 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 ne- cessitates an individualized approach, there is no "one size fi ts all" formula. However, the process doesn't have to be painful. Whether the disability is the result of a workplace accident or a weekend foot- ball mishap, the duty to accommodate remains the same. e Human Rights Code — e most inclusive approach e Ontario Human Rights Code, for example, requires an employer to accom- modate an employee with a disability "to the point of undue hardship" — similar requirements exist in other jurisdictions. is means considering the employee's restrictions and limitations and either modifying the employee's current job or fi nding other work as close as possible to the employee's pre-injury job, within the scope of the employee's abilities. ere are four fundamental steps to ac- commodation: Consider whether a disability exists. "Disability" is defi ned broadly under the code to include any degree of: • Physical disability, infi rmity, malforma- tion or disfi gurement caused by an injury or birth defect or illness • Mental impairment or developmental disability • Learning disability or mental disorder • Injury or disability for which benefi ts are claimed or received under the Workplace Safety and Insurance Act. e defi nition of "disability" does not consider where the injury or illness oc- curred; 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. Complete a procedural analysis. In most cases, an employer becomes aware an employee has a disability when the em- ployee 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 behav- iour causing a disruption in the workplace, the employer may need to inquire whether the employee requires accommodation. Once it has been established that an em- ployee has a disability, the employer must consider what can be done to facilitate the employee's continued participation in the workplace. is procedural analysis typi- cally begins with an inquiry into the nature of the disability (physical or mental), the employee's limitations (such as no lifting of more than 10 lbs) and for how long the limitations — and thus the need for ac- commodation — may last. Employers are entitled to ask for and re- ceive timely, accurate and relevant medi- cal information. A doctor's note that sim- ply says "patient cannot return to work for three months" is not suffi cient, nor can an employee refuse to provide information about his limitations on the grounds the information has already been provided to the workers' compensation board or to a private insurance carrier. In fact, decisions made by the workers' compensation board or a private insurance carrier are largely irrelevant to an employer's duty to accom- modate. Where the information from the em- ployee's doctor is insuffi cient, an employer might consider retaining the services of its own doctor or asking the employee to at- tend an independent medical examination paid for by the employer. When all else fails, an ongoing failure to co-operate can lead to discipline or the denial of the ac- commodation request. If it is not possible to modify the em- ployee's regular job, other similar jobs at the same wage rate must be considered. e employer must also explore if the tasks of multiple positions can be com- bined or bundled. In essence, the duty to accommodate requires the employer to off er work that is as similar as possible to the employee's pre-injury job. It's important to note — an employer is not required to bump other employees out of their positions or create an new po- sition 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 co-oper- ate in the process. However, accommoda- tion outside of an employee's bargaining unit is generally viewed as a last resort. Complete a substantive analysis. Al- though closely related to the procedural analysis, the substantive analysis consid- ers the specifi c modifi cations that may be required so the employee can fully participate in the workplace. is may in- clude 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 ac- commodation process is important, the employee does not have the right to insist on a more favourable position, and any ab- sence resulting from an employee's refusal ACCOMMODATION is a duty all employers must live up to, whether it's in regards to employee disabilities, religion, family status or other grounds protected under human rights legislation. When it comes to disabilities in particular, it can be somewhat vexing for employers as they try to determine how an employee whose abilities may be limited fi ts into the workplace. But unless the accommodation requires the employer to go to lengths that would constitute undue hardship, it's something that has to be done. However, the accommodation doesn't have to be a diffi cult process. Employment lawyer Carissa Tanzola discusses four fundamental steps that can make the accommodation of disabled employees as smooth and benefi cial as possible for all involved. BACKGROUND

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