Companies often focus on health and safety risks associated with an injury or illness that occurs at the workplace.
However, there may still be a risk if an employee suffers from an injury or illness outside of work. In such a case, the issue is whether the employee is medically fit to return to work following a medical leave of absence.
Even if the employee can return to work on modified duties, health and safety requirements in Ontario, for example, require undue hardship to be considered by an employer in discharging its duty to accommodate under the Ontario Human Rights Code.
Following an employee injury or illness outside of the workplace, an employer should ensure the employee is medically fit to return to work. This is particularly important if there are concerns about her ability to perform her job duties, given the type of injury or illness, or if she was on a medical leave of absence for a lengthy period of time.
Under occupational health and safety legislation, there are obligations on an employer, including taking every precaution reasonable in the circumstances for the protection of a worker.
To protect health and safety in the workplace, obtaining medical clearance from the employee’s doctor is recommended prior to allowing her to return. The obligation rests with the employer to ask for the necessary medical documents from the employee.
Questions to ask employee’s doctor
The types of questions an employee’s doctor should be asked when confirming fitness to return include:
•Will she return to work and perform the essential duties with or without any restrictions?
•Does she have limitations that impact her ability to perform all or part of her essential job duties (with details as to the physical restrictions or functional limitations)?
•Will the injury or illness impact her ability to safely perform any of her essential job duties (with respect to her safety and the safety of others)?
•Is there a risk of a further medical occurrence related to her injury or illness, either in the short or long term?
•Is she on any medication that would affect or impair her ability to safely and properly perform any of her essential job duties?
While the above questions are important for any employee who has suffered from an injury or illness, additional precautions should be taken for those in safety-sensitive positions who, for example, operate machinery or drive a vehicle. By not obtaining medical clearance prior to allowing an employee to return to work, there is a potential health and safety risk to the employee, co-workers and the public.
Where an employee with a disability can return to work on modified duties, an employer should determine whether accommodation is required. Under Ontario’s human rights code, an employer has an obligation to accommodate an employee with a disability to the point of undue hardship. Health and safety requirements are one of the factors of undue hardship.
Health and safety requirements can include specific obligations set out in a health and safety act or its regulations, or other rules or procedures in the workplace, according to the Ontario Human Rights Commission.
When accommodating an employee, the employer should ensure the modifications being made to his job do not result in a violation of the act or other workplace rules or procedures.
When assessing whether the health and safety standard is a bona fide occupational requirement, the response to the following questions should be yes:
•Is the health and safety standard connected to the job function being performed?
•Was the health and safety requirement adopted for the purpose of protecting employees or the public?
•Is the standard reasonably necessary to accomplish the work-related purpose?
For the last question, an employer must be able to demonstrate accommodation is impossible without causing undue hardship, according to the test set out in the 1999 cases British Columbia (Public Service Employee Relations Commission) v. BCGSEU and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights).
Simply raising a concern of health and safety is not enough to establish undue hardship, as confirmed in the 2009 Human Rights Tribunal of Ontario decision of Williams v. Hudson’s Bay Company/Zellers.
“For the health and safety concern to amount to undue hardship, the concern must be genuine and significant enough that it outweighs the benefits of the requested accommodation,” said the tribunal.
Relying on the decision of British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), the tribunal also confirmed a test of reasonable safety is to be applied, not absolute safety.
To reduce health and safety risks in the workplace, the above factors should be considered when managing an employee medical leave and return to work.
Ruben Goulart is a partner in the labour and employment law group at Keyser Mason Ball in Mississauga, Ont. Megan Burkett is an associate in human resources law at the same firm. Goulart can be reached at (905) 276-0404 or firstname.lastname@example.org and Burkett can be reached at (905) 276-0420 or email@example.com. For more information, visit www.kmblaw.com.