Accommodating a disabled employee can be one of the most frustrating experiences for an employer and employee. The parties are often suspicious of each other and generally do not understand their respective rights and obligations. To make matters worse, the stakes are high: Typically, the employee is in a vulnerable position financially, physically and/or psychologically, as he or she is attempting to return to work after a period of unemployment. Accordingly, the consequences of a failure to reinstate can be devastating. Conversely, the chances of an employer unintentionally violating the Human Rights Code are high and the potential liability can be significant, as was most recently evident to an employer that was ordered to pay an employee, among other things, approximately 9 years or $500,000 in lost wages and $30,000 in general damages for failing to accommodate her return from a disability leave: Fair v. Hamilton-Wentworth District School Board 2013 HRTO 440.

In this joint article, employment lawyer J.P. Zubec of Kelly Santini LLP and Christine McCool of TRAC Group Inc., a leading employee/employer disability management company, provide a helpful guide to employers  dealing with injured or disabled employees.  Part I of the article provides a detailed review of an employer’s legal rights and restrictions when dealing with injured or disabled employees.  Part II looks at the proactive steps that employers can take to facilitate a faster, smoother and more cost-efficient return to work by the employee.

The Duty to Accommodate: An Employer’s Rights and Obligations

J.P. Zubec

Kelly Santini LLP

An employer has a duty to accommodate employees to the point of undue hardship. The duty to accommodate has both procedural and substantive components. Subject to some exceptions, the procedural component requires an employer to obtain all relevant information about the employee’s disability, at least where it is readily available. The employee has an obligation to cooperate with the employer in providing this information. This process is extremely important because undue hardship cannot be established by relying on impressionistic or anecdotal evidence or after-the-fact justifications.

In Fair v. Hamilton-Wentworth District School Board 2013 HRTO 440, the Human Rights Tribunal of Ontario summarized the parties respective obligations as follows:

The person with a disability is required to:

• advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)
• make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation
• answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed
• participate in discussions regarding possible accommodation solutions
• co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability
• meet agreed-upon performance and job standards once accommodation is provided
• work with the accommodation provider on an ongoing basis to manage the accommodation process
• discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff.

The employer is required to:

• accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
• obtain expert opinion or advice where needed
• take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate
• keep a record of the accommodation request and action taken
• maintain confidentiality
• limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request
• grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language
• bear the cost of any required medical information or documentation. For example, doctors’ notes and letters setting out accommodation needs, should be paid for by the employer.

Common mistakes many employers make are as follows:

• refusing to promptly meet with the employee after the employee requests accommodations or meet with the employee at all
• failing to identify the essential duties of the employee’s position
• assuming the employee is incapable of performing the essential duties of his or her position without any meaningful investigation or expert advice
• refusing to accommodate an employee or dismissing the employee before gathering the evidence necessary to prove that the procedural and substantive components of the duty to accommodate have been fulfilled
• failing to keep a record of the accommodation request and action taken

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Facilitating Successful & Enduring Return to Work

Christine McCool

TRAC Group Inc.

Why Return to Work Makes Good Sense

Absences due to disability or illness are among the most challenging human resources situations facing employers today. Statistics have shown that costs related to productivity losses are on the rise, with the National Institute of Disability Management (NIDMAR) estimating that at any given time, 8-12% of Canada’s workforce is absent due to illness or injury.

The costs and impact of disability and illness are very high:

• For workers, in terms of loss of income and its impact on self, family, and social environments;
• For employers, in terms of increased insurance premiums, loss of productivity by trained workers, and increased recruitment costs;
• For society, the costs of social programs for individuals who, under the right conditions, could be productive and active members of the workforce.

Providing appropriate temporary or permanent accommodations to employees due to illness, injury or disability is a win-win for both employees and employers.

While the Canadian Human Rights Commission (CHRC) receives numerous complaints each year based on disputes regarding the transition back to work after an employee absence, it is possible to return an employee back to work successfully and in an efficient manner.

Return to work programs are based on the philosophy that many people can safely do some form of productive work during their recovery or in the face of a permanent disability. The priority is to return the employee to the position he or she held prior to absence, as well as his or her routines, workplace, and co-workers. This can often be achieved through the provision of workplace accommodations that enable the employee to execute his/her work duties in a modified fashion. The services of an experienced, third party Disability Manager can assist employees and employers in arriving at innovative solutions that accommodate the needs of returning employees while avoiding undue hardship on the part of the employer.

Disability Management

Disability Management is a process designed to facilitate the employment of persons with disability or illness through a coordinated effort and taking into account individual needs, work environment, enterprises’ needs, and legal responsibilities (World Health Organization, 2001), while respecting the related legislation, including the following:

• Ontario Human Rights Code;
• Employment Equity Act;
• Canada Labour Code;
• Employment Standards Acts;
• Workers’ Compensation Acts;
• Personal Information Protection and Electronic Documents Act;
• Occupational Health and Safety Acts; and
• Accessibility for Ontarians with Disabilities Act.

A proactive Disability Management model uses an employee-employer driven approach in order to facilitate open communication between employees and employers, applies an early intervention approach, and coordinates timely and efficient return to work programs. The identification of temporary or permanent accommodations is often what determines how early an employee can return to work as well as the ultimate success of his/her return to work.

Often in addition to determining appropriate accommodations for an employee, a Disability Manager is able to identify what barriers may affect the employee, explore options for removing such barriers and in doing so, assist employers in accommodating employees in a practical yet cost-effective manner. In this regard, Disability Managers often draw upon a network of health care providers such as physicians, occupational health nurses, occupational therapists and vocational consultants as resources in the accommodation process. As regulated health care providers, disability managers are in a unique position that enables them to access required medical information on behalf of employees and employers while ensuring employees’ medical information remains strictly confidential.

In a nutshell, Third Party Disability Management by qualified and experienced health care providers serves as a bridge between the employer and employee to aid employers in accommodating employees with disabilities. Specifically, by:

• Ensuring appropriate employee medical assessments have occurred, and those performing the assessments have sufficient job information to appropriately determine the employee’s ability to return to work and under what conditions;
• Identifying barriers in an employee returning to work;
• Identifying potential interventions to decrease the impact of barriers;
• Developing a return to work plan in conjunction with the employee, employer, and medical professionals;
• Monitoring the return to work plan; and
• Evaluating the return to work process so as to ensure successful and enduring return to work for the employee.

Six Principles for a Successful Return to Work:

1. Commitment: Successful return to work for employees following medical leave most often occurs in organizations with a strong commitment to health and safety, which is demonstrated throughout the organization by the employers, supervisors, managers, and employees;
2.  Support: Understandably, many employers are ill-equipped to adequately address the needs of employees requiring medical accommodation. Third Party Disability Management by qualified and experienced health care providers serves as a bridge between the employer and employee to aid employers in appropriately accommodating employees with disabilities. Disability Management Consultants also act as resources in training employers, managers, and supervisors on how best to facilitate return to work for returning employees.
3. Training: While managers and supervisors are trained in work disability prevention, similar training must be provided for return-to-work coordination for returning employees so managers and supervisors may appropriately support returning employees and their co-workers, particularly if work place accommodations are in place;
4. Communication: Open communication between employer and employee sets the stage for successful and enduring return to work for employees returning after illness or injury and ensures smooth execution of the return to work plan. With an employee’s consent, a Disability Management Consultant is able to communicate with the medical professionals involved in the employee’s care, thus maintaining the employee’s privacy while assisting the employer to provide the appropriate and necessary workplace accommodations.
5. Accommodation: The employer is prepared to provide modified work (that is, work accommodation) to injured and ill workers so they are able to return in a safe and timely manner to work activities that are suitable for their abilities;
6. Planning: Successful and enduring return to work after illness or injury requires planning that is founded upon medical support and clearance, respects the employee’s tolerances, and accommodates his/her abilities. For this reason, return to work plans are often graduated or multi-staged to assist employees in gradually returning to work demands while becoming accustomed to new workplace accommodations or modifications.

As Fair v. Hamilton-Wentworth District School Board 2013 HRTO 440 demonstrated, it is incumbent upon all employers to ensure that employees returning from disability leave are appropriately accommodated so as to enable them to return to their pre-disability jobs without causing the employer undue hardship. Moreover, the availability of return to work protocols by an employer speaks to an organization’s commitment to the health and wellness of its employees while yielding tangible rewards through increased productivity and reduced replacement/recruitment costs.

For information regarding Disability Management Services, please contact: Christine McCool, Director, TRAC Group Inc. at: christine.mccool@tracgroup.ca or visit www.tracgroup.ca

For information regarding the Duty to Accommodate and your rights and obligations. please contact: John Paul Zubec, Partner, Kelly Santini LLP at: jpzubec@kellysantini.com or visit www.kellysantini.com