August 4, 2004

Salary While Accommodating Injury

Question: We have a salaried employee in Ontario who has given us a doctor’s note that states he is only able to work 70 per cent of his previous capacity. While we are able to spread the added workload around for a short period of time, we do not feel it is sustainable over an extended period. Do we have to continue paying this employee full-time pay or are we able to scale his salary back?

Answer: The issues that arise in this circumstance are complicated and must be determined on a case-by-case basis. The Ontario Human Rights Code prohibits discrimination against individuals due to (among other grounds): race, sex, age and disability. The code also places a duty on employers to accommodate an employee who is unable to continue to perform his duties due to a disability. The employer has a duty to accommodate to the point of undue hardship. Depending on the circumstances this duty may require moving the employee to another position and/or reducing his responsibilities.

Once it has been resolved how the employee will be accommodated in lieu of the disability, the employer may have the right to alter the employee’s compensation accordingly.

The Ontario Court of Appeal has held that requiring work in exchange for compensation is a reasonable and bona fide requirement. Accordingly it would seem that if an employer accommodates an employee who is unable to perform his duties at 100 per cent capacity due to a disability by either placing the employee in a new position or removing duties from the current position, the employer may correspondingly adjust the employee’s compensation.

In fact the Ontario Court of Appeal has held it is not prohibited discrimination to distinguish between employees who are providing services to the employer and those who are not for the purposes of compensation. But one must bear in mind that questions involving an employer’s duty to accommodate are extremely fact specific and therefore it is recommended that you proceed with caution and consult a lawyer as necessary.

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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