Canadian Employment Law Today

CASE IN POINT: Accommodation 4 Canadian HR Reporter, a Thomson Reuters business 2014 MAKING AN effort to accommodate an employee's disability is required under employment law principles, and employers must do everything reasonable and within their ability to make arrangements — whether it means modifi ed duties, modifi cations to the work environment, or fl exible working hours — to the point of undue hardship. However, the accommodation process requires participation not just by the employer, but also the employee. If the employee doesn't do her part or is dishonest about her requirements, it can free the employer of its duty to accommodate — and might seal the fate of the employee's employment. BACKGROUND Disabled employee fi red for misleading employer Diff erence between the way worker carried herself at work and that observed outside of work was like 'night and day' BY JEFFREY R. SMITH AN ONTARIO employer had just cause to fi re an injured employee who misled it on her ability to perform her regular job duties, an arbitrator has ruled. e employee, who remained anony- mous during the arbitration and was re- ferred to only as S.L., was a multimedia journalist for the Toronto Sun newspa- per. e 43-year-old had worked for the Sun since 1991. In January 2001, S.L. severely injured her left ankle in a skydiving accident in Florida. She had surgery that involved placing screws in the ankle and her mobility was aff ected afterwards. e Ontario Workers' Safety and Insurance Board (WSIB) gave her a non-economic loss award and she was off work for about six weeks. e Sun accommodated S.L.'s disability by providing her with a laptop computer so her work assignments could be done at home. She wasn't given assignments that required physically visiting locations, as she was unable to drive or use public transit, and she needed to use two canes to walk. After a couple of years, S.L.'s condi- tion didn't improve, so she underwent a second surgery in September 2003 and a third in April 2006. However, she con- tinued to experience pain that required strong medication. In March 2006, shortly before S.L.'s third surgery, the Sun requested her to return to the workplace, as it understood that she was at maximum recovery and wasn't going to improve any further. S.L. continued to work from home and on June 20, 2006, the Sun informed her that her position was no longer needed and she was being laid off , though she wasn't the most junior reporter. ree days later, the layoff was rescinded and the Sun told her she would be returning to work full- time as a general assignment reporter. Return to offi ce with restrictions S.L. returned to the workplace on June 26. She wasn't required to do any work outside the offi ce and was able to per- form all her duties from a desk. However, she testifi ed her desk wasn't ergonomic and she was in signifi cant pain by the end of each day. S.L. saw her doctor on June 28 and he provided her with a note that said she required a "pain consult" before return- ing to work. S.L. gave this note to man- agement, but the Sun felt she had been cleared to return to work by the WSIB with accommodations. S.L. tried to work from home again but was told there were no modifi ed duties that could be done from home as a general assignment re- porter, which had assignments diff erent from the niche stories she had been as- signed when working from home earlier. On July 17, the Sun wrote to S.L. stat- ing that the WSIB had indicated there was no medical reason for her not to be working full-time as a general assign- ment reporter. e union indicated it would send additional medical informa- tion to the WSIB and the Sun, so the Sun agreed to review the information and de- cide on the next course of action. In the fall of 2006, S.L. provided two medical reports from diff erent doctors that indicated she had chronic pain re- quiring medication and limited motion, resulting in a "permanent disability." Graduated return to work hours were recommended along with "sedentary work to get her pain under control." e reports also indicated she needed an ergonomic chair, headset, footrest and limits on walking and standing. e Sun complied with the accommodation in- structions and S.L. returned to work in December 2006. However, she still had diffi culties with the front door — which didn't have an automatic opener and the washroom door, which led to a fall com- ing out of the washroom. In February 2007, S.L. had a functional abilities evaluation, which described the need to walk with canes, no carrying or standing and little stair climbing. A few months later, the WSIB denied a claim for lost earnings benefi ts for the period she was off work between June and De- cember 2006 because it determined she was capable of performing modifi ed work within her restrictions that the em- ployer provided. e Sun's accommodations meant that S.L. was unable to go out into the fi eld, so occasionally other reporters had to complete her work if that was required. S.L. always walked slowly with two canes while in the offi ce. However, her work was considered good and she won three awards between 2007 and 2010 for her articles. S.L. occasionally provided WSIB func- tional ability forms, which listed walk- ing and lifting restrictions as well as an inability to use public transit or drive a car. A form submitted in September 2010 omitted any mention of an inability to drive, but S.L. never indicated she had improved to the point where she could drive or take public transit. Rumours raised suspicions about employee's abilities e Sun's editor-in-chief sometimes heard from people that S.L. was seen walking more easily outside the offi ce. He initially dismissed these reports, though he once asked S.L. to attend a press conference at Toronto city hall because they were short staff ed. However, S.L. came into his offi ce crying and saying she was in too much pain. Another reporter was assigned. e editor-in-chief heard more ac- counts of S.L.'s abilities outside of work — including that she drove to work, parked in a nearby lot and walked to the offi ce — so in December 2011 it was decided to

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