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Jun 7, 2012

Employers face challenges with duty to accommodate

By Linda Johnson
Learning how to accommodate sick or injured workers may be one of the more difficult aspects of an employer’s job. But when workers have chronic or mental health illnesses, the process can be far more demanding.
A recent seminar, Disability Accommodation and Return to Work, presented by Toronto law firm Sherrard Kuzz LLP, provided a review of best practices on accommodation and return to work compliance. The seminar, written by employment and labour lawyers Katherine Ford, Leah Simon and Carissa Tanzola, covered a wide range of subjects, from how to handle a vague doctor’s note to understanding the WSIB claims process for workplace injuries.

Employers in Ontario have a duty to accommodate employees with disabilities to the point of undue hardship, and one of the first issues any company must clarify is what conditions are regarded as disabilities under the law, Ford says. The definition of disability is a broad one and includes physical and mental impairments; injuries sustained both at and outside work; and temporary and permanent conditions. It also includes the perception of a current or past disability.

While there is no comprehensive list of disabilities, she adds, a few guidelines will rule out some disorders. For example, common ailments, such as the cold, flu and bronchitis, are generally not deemed disabilities.

“It comes down to a couple of questions. The first is, ‘Is this a condition so common that to provide it with the protection of the Human Rights Code would ultimately make the protections of the code meaningless, or water down those protections?’ That’s the primary consideration,” she says.

“The other question often looked at is, ‘Does the person’s condition really pose an obstacle to their fully participating in society?’ So, does it significantly affect their day-to-day functioning?”

Stress and anxiety often raise particularly difficult problems for employers, Ford says. Workers dealing with intense stress, caused by work or problems outside work, may ask for time off. While a diagnosed anxiety disorder is a true disability, the general feeling of stress is not enough to establish a mental disability. It is in fact considered a sign or symptom of another disability.

“When we have employees coming to us with those types of claims, we should ask for more information from their physician about their actual medical restrictions and limitations. Have they been diagnosed with a medical condition?” she says.

“We don’t need to know what that diagnosis is; we just need to have confirmation from a medical practitioner that there is an actual or working diagnosis in process that this person has a disability.”

In accommodating workers with disabilities, employers have several duties, such as determining whether the worker’s job can be modified or whether other work is available. However, Ford adds, they also have rights. They are, for example, entitled to receive sufficient medical information to support the employee’s request and to understand what kind of accommodation is required and for how long. Though they do not need the diagnosis, they must have information on the person’s limitations, prognosis and regular updates on the worker’s condition.

Yet, she notes, receiving sufficient facts is one of the biggest challenges employers face. When a doctor has provided only scarce or vague information, she advises the employer write a letter to the doctor explaining the worker’s situation, including recent attendance and stated limitations. They should also consider attaching a job description to show what activities are required. With that background, the employer can then ask the doctor questions, such as whether the worker has a medical condition and whether it would prevent them from doing their regular job.

“And one of the best practices we suggest to employers is to consider paying for that information,” she adds. “Sometimes, employers don’t want to put any money towards a doctor’s note, but $50 or $100 to pay for a medical report from a doctor is often well worth it. If an employee has to pay for it, they may be less inclined to get the report you’re looking for, and sometimes what we’re asking the doctor for may be over and above what they normally provide.”

If still unable to obtain enough medical information from the worker’s regular doctor, or if the report provided seems inconsistent with personal observation, the employer can turn to an independent medical evaluation. This can, however, be expensive.

A better and more effective alternative, Ford says, is the medical consultant, who works with the employer and acts as a third-party medical reviewer. Using the information already given to the employer, they speak to the worker’s doctor to get a better understanding of their condition and restrictions.

“So the employer is able to have someone else take a look at the file to give them a sense of what they should be doing from an accommodation perspective,” she says.

“The third-party medical review consultant gets more medical information than an employer would because they are doctors. So they understand the information, and they know what questions to ask.”

Where an employee is returning to work with modified duties, Ford advises they prepare a written return to work (RTW) plan that clearly identifies the position; modifications and restrictions; and work hours. This plan should be reviewed regularly, and an employer should be vigilant, making sure the worker does not permanently remain on modified duties, and signing off on any changes.

If the worker fails to comply with the agreed plan, the employer may take disciplinary action. On the other hand, if they seem to be working beyond their agreed restrictions, they should consider asking for an updated medical.

Information on the accommodation agreement should be disclosed on a need-to-know basis only. Thus, a direct supervisor will need to know what the worker can do and how long they will have modified duties. With regard to co-workers, an employer may consult the worker about what should be disclosed.

Employers should also remember the WSIB, which has a monetary interest in seeing injured or sick employees return to work, can help at various stages in the accommodation process, Ford says. If a worker is unco-operative or insists that the modified work is unsuitable, the board can provide an RTW specialist, a person who works with the employer to determine what tasks are appropriate for a given worker. The board can also deal directly with the employee, letting them know the work has been judged appropriate and they risk having their benefits stopped.

In unionized workplaces, unions are required to participate in the accommodation process, possibly agreeing to waive certain collective agreement provisions, she adds. Where a modified duty conflicts with a union contract, the need to accommodate takes precedence. This happens most often when a worker with a disability is deemed capable of doing a job that according to a contract should be done only by the most senior employee.

“At the end of the day, the duty to accommodate trumps the collective agreement. However, as an employer, you will need to show that you looked at all other available options for other positions before you disrupt a collective agreement provision,” she says.

As with other employees, workers with disabilities can be let go for cause. They can also be terminated when they have been off for an extended period of time, Ford says, and the medical evidence demonstrates there is little chance they will return to work in the foreseeable future. In such a case, the employer may be able to treat the employment contract as “frustrated” and thus will not owe the worker notice of termination or pay in lieu of notice. However, in Ontario, the employee is still entitled to termination and severance pay.

Though employers must accommodate to the point of undue hardship, that situation might not always result in termination, Ford says. If no position can be found that will accommodate the worker, the person may go on a leave of absence to see whether, over time, a change in their condition may allow them to return to work. If there is no change, the employer may declare the contract frustrated.

Undue hardship is assessed on a case-to-case basis and must be proven on objective evidence, Ford says. Three factors are considered: financial cost; availability of funding to assist in accommodation; and health and safety concerns.

“If to accommodate an employee would put other employees or the employee at issue at risk of health and safety violations or concerns, this may be sufficient to demonstrate undue hardship.”

The HReview breakfast seminar, held at the Mississauga Convention Centre, is part of a series. In addition to HR professionals, Ford says, the event was attended by a wide variety of business people, including operations and general management personnel, as well as small and large employers.