May
14,
2014
|
Canadian
Employment
Law
Today
Canadian HR Reporter, a Thomson Reuters business 2014
to work in an otherwise suitable position is
culpable. Finally, unless the cost of a modifi -
cation will signifi cantly impact the viability
of a business, the cost of accommodation
will not be accepted as "undue hardship."
Follow-up regularly. Once an accom-
modation 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 posi-
tion.
Workers' compensation —
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 relevant
workers' compensation legislation (the
majority of employers are required, or opt,
to have coverage), the legislation requires
the employer to provide "suitable modifi ed
duties," as worded in Ontario's Workers
Safety and Insurance Act. is standard is
not as high as the "duty to accommodate"
under the code.
Usually, "suitable modifi ed duties" means
adjusting hours of work, productivity stan-
dards and exploring other positions on the
same shift at the same wage rate. e Ontar-
io Workplace Safety and Insurance Board
(WSIB) does not generally require an em-
ployer to make costly modifi cations to the
workplace or to bundle the tasks of multiple
positions in order to meet its obligations un-
der the act.
Where both the code and act apply, it is
advisable that an employer seek to accom-
modate 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 re-
ceiving workers' compensation benefi ts and
any liability arising out of a breach of the
code.
Practical tips
e duty to accommodate, while at times
daunting, can be managed to the benefi t of
both the employer and employee. To sim-
plify the process remember the following
tips:
• Each case must be evaluated and analyzed
on its own merits.
• Accommodate to the point of undue hard-
ship for all cases of disability, regardless
whether the WSIB is involved.
• Consider every suitable or potentially suit-
able workplace position, including bun-
dled tasks.
• Don't rely on the decisions of the WSIB or
an insurance carrier.
• Continue to seek out updated, meaningful
medical information.
• Work with the employee — and union, if
applicable — to explore and implement ap-
propriate accommodation.
• When in doubt, reach out to experienced
employment counsel who will help you
navigate through the process.
About the Author
CARISSA TANZOLA
Carissa N. Tanzola is a lawyer with Sherrard Kuzz LLP, a management-
side employment and labour law fi rm in Toronto. She can be reached
at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting
www.sherrardkuzz.com.
CREDIT:
GOODLUZ/SHUTTERSTOCK.COM
