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A band-aid solution

How long should an injured employee be on modified duties if there’s no improvement?

By Jeffrey R. Smith

When workers are injured on the job, it can be difficult for employers to figure out how far they need to go to accommodate them.

If an injured employee is able to do some duties on a limited or restricted basis, and the employer is able to provide a position with those duties without causing too much of a problem, the employer must accommodate. Usually, a medical opinion is required that specifically sets out the injured employee’s limitations and what she is capable of. With this information, a timetable can be set and a program can be developed to allow the employee to eventually work her way back to full duties.

However, the situation can become more complicated if the employee comes back to work on modified duties as part of a return-to-work program, but shows no progress or aggravates her injury. If this is the case and the employee is unable to work at all with no indication of when she will be able to, how much more should be expected of the employer?

Last year, an Ontario nurse was injured at work and had to take time off to recover. The hospital developed a program based on her medical restrictions that would allow her to perform lighter duties and work fewer hours, with a gradual working up to full duties after several weeks. However, the nurse hurt herself again and the program had to be altered with new restrictions.

After a couple of months on the revised program, the nurse wasn’t showing any improvement and the hospital was concerned having her work with limited duties was doing more harm than good. Since she wasn’t any closer to full functionality, the hospital put her on unpaid leave until she showed improvement.

An arbitrator found the hospital’s efforts to accommodate the nurse were “diligent” and sufficient. Since the nurse wasn’t getting any closer to returning to full duties and there was no medical timetable established, it was the point of undue hardship to expect the hospital to provide limited duties and hours indefinitely. A few months later, the employee was able to resume the program and eventually returned to full duties.

Placing an employee on unpaid leave is a tough option and could be seen on some sides as discrimination based on the employee’s disability, but was it a fair decision given the above situation? The employee was eventually able to return to full duties, but she may have needed the time off to get better as opposed to working modified duties. How far should an employer have to go to keep an employee with an injury working before throwing in the towel?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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