WSIB & Ontario Human Rights

WSIB & Ontario Human Rights Samuel Steel Safety Group

WSIB and Ontario Human Rights Under WSIA we are obligated to co-operate in an Early and Safe RTW (Sec40(6)) and for re-employment we are to accommodate the work or the workplace to the point of “undue hardship” (sec41(6) and we are obligated to re-employ the injured worker until the earliest of 2 years for the date of accident, one year from the date the worker is able to perform the essential duties of the pre-injury job and until the worker reaches the age 65 (sec41(7)) Samuel Steel Safety Group

The Ontario Human Rights Code (OHRC) provides for No Discrimination in Employment. Sec5(1) states: Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offenses, marital status, family status or DISABILIY. OHRC trumps all other Acts or regulations unless the Act or regulation provides that it is to apply despite the OHRC. (Sec47 (2)) The OHRC has a very broad definition of disability which includes any degree of physical disability, a mental impairment, a learning disability, a mental disorder or any injury or disability for which benefits were claimed or received under insurance or WSIB. Samuel Steel Safety Group

Accommodation under OHRC The employer : -must try to meet the workers needs to do the essential duties, -need only accommodate to the point of undue hardship (it should be noted that under the new Work Integration program WSIB is going to help small employers with the costs of accommodation to avoid the “undue hardship”) If needs cannot be met or the worker still can’t do the job even after the needs are met then the duty to accommodate ends. Samuel Steel Safety Group

Employers are responsible for accommodation under the WSIA and OHRC A worker can bring a case to OHRC that is also before WSIB or WSIAT Samuel Steel Safety Group

In one case this year, a worker was injured May6/09 and was off work for treatment and surgery, then was laid off as the employer was unable to accommodate short of undue hardship. WSIB determined that there was no re-employment obligation (employer had under 20 employees). The worker entered an LMR program. The complaint to OHRC was that the employer failed to accommodate her disability or wait for her to recover. OHRC found that WSIB had not carried out an assessment of the procedural and substantive components of the duty to accommodate or considered the defense of “undue hardship” and the underlying factors of health, safety and costs. OHRC found that WSIB did not fully consider the accommodation issues as required by OHRC-WSIB had simply applied their own policies. The Employers request for case dismissal was denied. This case will continue through the process. Samuel Steel Safety Group

In another case, the WSIB found the employer provided suitable work and met the re-employment obligations by offering 2 suitable permanent MD-the worker wanted to work at a different location. The worker didn’t appeal the Board decision but brought a complaint to the OHRC who concluded the employer breached the OHRC-ie inadequate accommodation to Code. Samuel Steel Safety Group

So, what is OHRC looking for? To meet Code the RTW process must incorporate accommodation that would allow the worker to return to the essential duties of the pre-disability job and consideration of other accommodation that would allow the worker to return to work subject to “undue hardship”-the employer must be able to show objective evidence that accommodating the worker would result in undue hardship. In the second case we spoke about the location of work was all about a place to park the car-WSIB dealt with suitability of the work but not specifically the car issue. Samuel Steel Safety Group

Employers must consider all RTW matters from a human rights perspective. Fully discuss issues with the worker. Consider all available options for accommodation. Clearly indicate why an option is not suitable-ie undue hardship. Respond to WSIB with Code considerations in mind. DOCUMENT EVERYTHING. Samuel Steel Safety Group

Any Questions? Samuel Steel Safety Group

WSIB & Ontario Human Rights