Employees Returning to Work After Injury or Disability – An Employer’s Rights and Obligations

1. Employees Returning to Work After Injury or Disability – An Employer’s Rights and Obligations Kevin MacNeill kmacneill@ehlaw.ca September 17, 2014 www.ehlaw.ca

2. Introduction • Issues in relation to accommodating employees with disabilities and assisting them to return to work can be challenging and complex • Getting employees who can work back to work is beneficial to both employee and employer • Return to work process requires cooperation from employee and union (where applicable)

3. Today’s Session • Overview of statutory and other legal obligations affecting “return to work” decisions • Workplace safety and insurance legislation • Occupational health and safety legislation • Human rights legislation • Duty to accommodate • Medical notes or certificates • Applying the principles – some factual scenarios

4. WorkplaceSafety and InsuranceAct

5. Workplace Safety and Insurance Act Work-related injury or illness – the Workplace Safety and Insurance Act requires employee and employer to work together to ensure “early and safe return to work” (“ESRTW”) Goal is an early return to suitable employment Functional Abilities Form used for planning ESRTW Must re-employ injured employee to: Pre-injury job without accommodation; Pre-injury job with accommodation; or Other suitable position

6. OccupationalHealth and SafetyAct

7. Occupational Health and Safety Act • Establishes a variety of obligations on employers to take all reasonable precautions to protect the health and safety of workers • Creates various obligations for the reporting of accidents depending on the seriousness of incident • Obligations under OHSA and WSIA are separate and must be complied with independently • Includes requirement to report “occupational illness”

8. HumanRightsLegislation

9. Human Rights Legislation Human Rights legislation prohibits discrimination in employment on the ground of “disability” “Disability” has been broadly defined Applies whether or not disability is work-related Employer required to accommodate employee’s disability to the point of undue hardship Employee (and union) required to cooperate in accommodation process

10. Duty To Accommodate

11. Duty to Accommodate • Employers are under a positive obligation to accommodate the needs of employees with disabilities to the point of “undue hardship” • Duty to accommodate includes both a procedural and a substantive component – process can be as important as outcome!

12. Duty to Accommodate • Employee’s obligations • Employees have a duty to facilitate employer’s efforts to offer accommodation (and so does the union) • Obligation to identify restrictions/limitations • Obligation to keep employer informed of health status and ability to perform work • Failure to cooperate in accommodation may result in termination being upheld, even when point of undue hardship has not been reached

13. Duty to Accommodate • Duty to accommodate satisfied where • There is no evidence of employee need for accommodation to resume regular attendance • No accommodation is possible due to severity of disability • There have been a number of failed attempts to accommodate in the past • The employee has failed to act reasonably in the accommodation process

14. Initial (and Ongoing) Consultation with Employee/Union • Employee/Union must be involved in accommodation process • A decision must NOT be made without consultation • Review employee’s responsibility and obligation to actively participate in accommodation process • Invite participation of Union(s), if applicable

15. Medical Information

16. Medical Information • Medical information for accommodation • Not only permitted – required! • Employees have a duty to cooperate • Employer not required to take request at face value • Employer entitled to more detailed information • Medical confirmation of necessary accommodation • Prognosis, not diagnosis • Medical limitations

17. Medical Information • “What is required in the first instance… is the minimum sufficient objectively reliable information necessary to satisfy a reasonable employer that the employee was or is in fact absent from work due to illness or injury, and is entitled to any collective agreement benefits in that respect.” • “In the case of an ongoing absence, the employer is also entitled to an indication of when the employee is likely to be able to return to work safely, and in appropriate circumstances to any restrictions or accommodation that may be required in that respect.”

18. Return to Work and Accommodation How Much Information is Enough? • Employees have a duty to cooperate • The employer is entitled to know about • The need to be accommodated • Prognosis for return to modified/regular duties • Medical restrictions/limitations • Employer has a duty to consider this information • Employee’s failure to provide medical information may absolve employer of duty to accommodate

19. Accommodation Decision • Must systematically review and document ALL options • Can the employee be accommodated in substantive position? • Can the job be modified? • Can the work methods be altered? • Can the workplace be modified? • Can a policy be changed? • Can a product or piece of equipment be purchased? • Is it necessary to obtain a service? • Is reassignment a possibility? • Inside bargaining unit? Outside bargaining unit? • Review above questions

20. Make Individualized Decision Based on Objective Evidence • In assessing all of the factors in the accommodation decision, would accommodation cause undue hardship? • Case by case analysis - consider • Safety • Financial cost • Impact on other employees • Size of employer’s operations

21. Implementation and Follow-up • Document reasons why accommodation was implemented • Accommodation may not be what employee wanted or expected • Entitled to reasonable accommodation – not perfect solution • Employee not entitled to “dictate” the accommodation (or position) • Important to monitor (work performance and medical status) and adjust accommodation, if necessary

22. End of Accommodation • Duty to accommodate satisfied where • There is no evidence of an employee’s ongoing need for accommodation • Retain accommodation file

23. SomeFactual Scenarios

24. Fact Scenario #1 • Employee diagnosed with anxiety disorder, depressive disorder and chronic lymphocytic leukemia – refused to participate in performance appraisal and went off sick • Most recent medical information indicated that she was capable of performing her full duties, but employee insisted she was unable to return to work • Employer provided three options but employee continued to insist on a specific form of accommodation • Employee was terminated

25. Baber v. York Region District School Board (2012 – HRTO) • Findings: • Confirmed that an employee who seeks workplace accommodation • “has a duty to co-operate in the accommodation process by providing her employer with a reasonable amount of information about her physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship.” • Lack of medical information supporting claim of unfitness to work meant that the employer’s duty to accommodate was not triggered • Claim to specific form of accommodation rejected; complaint dismissed

26. Fact Scenario #2 • Employee suffered lower back injury while at work; off work for 3 months (received WCB benefits) • Returned to work on “modified duties” for a period of 3 months, then left on vacation • Upon return from vacation, employee suffered recurrence of injury and left work (has been off work since - > 24 months) • Employer wants employee to return to work but employee claims he is disabled from his own job and from doing modified work; conflicting medical information

27. Toronto (City) v. C.U.P.E., Local 416 (2002 – ON LA) • Findings: • Employee worked as a Labourer/Sanitation for the City of Toronto – had been off work from January 1995 • Union filed a grievance alleging wrongful denial of LTD benefits • Issue – whether grievorwas • Totally disabled from own occupation (first 24 months) • Totally disabled from any occupation for which he is qualified (after 24 months) • Grievance denied – onus on union to establish breach of collective agreement; medical evidence not conclusive

28. Fact Scenario #3 • Employee has been off work on sick leave (or WSIB) for a period of 3 years • Employer has requested up-to-date medical information, which indicates that the employee’s return to work date remains uncertain • Employer has let employee know that his employment status is being reviewed and is considering terminating employment

29. Ontario Human Rights Commission v. Jeffrey (2007 – Ont. Div. Ct.) • Findings: • Application of the principle of frustration of contract to employment contracts modified by human rights legislation and the duty to accommodate • Where no reasonable prospect of employee returning to work, even with accommodation, termination for frustration permissible • Employer’s conduct in terminating employee assessed against standard of undue hardship (which will vary according to size and nature of employer’s business)

30. Unionized Workplace • Where collective agreement contains a “deemed termination” clause • McGill (SCC – 2007) - such clause is prima facie discriminatory, but can be justified (on the three-part test set down in Meiorin) • Deemed termination clause cannot be used to justify automatic termination – some consideration must be given to accommodation • Court will look at all the steps taken by the employer during the entire period of absence in assessing duty to accommodate and undue hardship

31. Common Mistakes • Failing to fairly consider all requests • Failing to ask for further details when information provided is inadequate or insufficient • Failing to consider all accommodation possibilities • Failing to train management on accommodation issue • Failing to involve employee in accommodation process • Failing to make an individualized decision, based on objective evidence

32. The Potential Costs of Getting It Wrong

33. Fair v. Hamilton-Wentworth District School Board (OHRT – 2012) • Facts: • Employee of almost 16 years developed anxiety disorder in 2001 due to stressful nature of employment • Discharged from duties after hospitalization in 2002 • Diagnosed with post-traumatic stress disorder and depression • LTD Benefits were terminated after 2 years when assessment deemed employee “capable of gainful employment” • Employer stated no positions available involving less responsibility and terminated employment

34. Fair v. Hamilton-Wentworth District School Board (OHRT – 2012) • Findings: • The employee fulfilled obligation to co-operate fully in the accommodation process • The employer failed to “actively, promptly and diligently” canvass possible solutions to the employee’s need for accommodation • Remedies: • Reinstatement to suitable employment • Training to prepare for return to work • Calculation of 10 years worth of lost wages • $30,000 for injury to dignity, feelings and self-respect • Judicial review heard March 2014

35. Questions? Kevin MacNeill EmondHarnden LLP kmacneill@ehlaw.ca www.ehlaw.ca