October 13, 2004

Accomodating Employee Not Suited for Modified Position

Question: We had an employee go on a leave of absence due to illness not related to work. This leave extended to two years and the employee is receiving long-term disability benefits. The employee has been given the go-ahead to return to work with permanent medical restrictions. The employee has also been receiving training through the company’s benefits. We have positions that meet the medical restrictions but the employee doesn’t have the experience necessary to be successful in these positions. Does the company still have a duty to accommodate and employ this person?"

Answer: For the purposes of this question we will assume it is a non-unionized environment, because if the employee in question is unionized, there likely will be relevant portions of the collective agreement which will detail both the worker’s rights and the procedures which both employee and employer should follow if there is a dispute. In the non-unionized environment, the law in Ontario is evolving in these matters.

Traditionally the position has been that the employer has a very demanding duty to accommodate when an employee’s injuries are related to work. In this case, if it were a work-related injury, due to workplace safety and insurance legislation the employer would not only have to make efforts to accommodate the employee within her own job, but also to provide that employee with an alternate position within the firm if her injury precluded her from returning to her prior work responsibilities.

For injured employees where their injuries were unrelated to the workplace, the law has been that employers only had to accommodate the individual within the context of the work responsibilities they held prior to the injury. But if the employee could not be accommodated within her particular position then the employer would have no further obligations. For example, if a filing clerk had gotten into a car accident, and she needed the assistance of a wheelchair, then the business would have to accommodate her ability to file documents by ensuring filing cabinets were within her reach. But if the effects of the employee’s car accident left her unable to do filing under any circumstances, then the employer would have no further duty to accommodate, including no requirement for the employer to supply the employee with alternate work.

But human rights jurisprudence has been changing to mirror the responsibilities of employers in situations of employment-related injuries, and common law decisions have more and more been heading in that direction as well. Recently some courts have stated in obiter that even in situations of employee injuries unrelated to work, the employer may have an extended duty to accommodate.

This means the employer in question would not be able to rely on the distinction between employees injured at work and those injured outside of the workplace. For many this could be an important shift in the law whereby an employer’s duty to accommodate will be broadened in scope to include not only accommodating the employee within her previously held position, but also potentially accommodating the employee by creating a new position which she is capable of doing based on her medical restrictions.

Therefore, in this particular situation the employer would be well-advised to give this employee the opportunity to perform the available position which meets her medical restrictions.

Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@israelfoulon.com. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today

LEGAL DISCLAIMER: This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation.
Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.

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