Flexibility, communication aid accommodation process

Canadian Human Rights Commission publishes new guide
By Lorna Harris
|hrreporter.com|Last Updated: 01/18/2008

Prolonged rates of absenteeism due to disability are relatively common in Canada. In fact, the National Institute of Disability Management and Research (NIDMAR) has suggested that between eight and 12 per cent of Canada’s workforce are off work due to illness or injury at any given time. Reintegrating recovered or recovering workers into the workplace can be challenging for workers and employers alike. A recent collective agreement signed between Protectolite Inc., a Scarborough, Ontario company and the International Association of Machinists and Aerospace Workers, the union representing its 47 bargaining unit employees, included specific language on return-to-work. The union representative acknowledged that the company was having trouble “getting people to come back to work” after being off as a result of an illness or injury. The new language addresses the obligation to come back not just when fit for regular duties but to return to modified duties if “suitable, temporary, modified work” is available.

The Canadian Human Rights Commission recently published a guide for managing this return-to-work process. Entitled A guide for Managing the Return to Work, it emphasizes that communicating openly and recognizing the uniqueness of each situation will go a long way to ease an employee back to work after a disability-related absence. Such communication includes regular contact with the employee, especially during a long absence, as well as regular consultation with health and medical specialists.

If the workplace is unionized, there is another layer of consultation to consider. The guide notes that a union representative can provide valuable advice, given that the employee may have to be accommodated in the workplace and that these accommodation measures will affect the rights (e.g., seniority rights) of other employees under the collective agreement. Also, the employee has the right to be represented by his or her union during the discussions. Accommodation measures can trump the terms of a collective agreement, but exploring possibilities that will not interfere with other employees’ rights and entitlements under the collective agreement is a sensible first step.

The guide recommends contacting the union representative early in the process, once the initial assessment of the situation has been completed. Sharing information –– on a “need-to-know” basis –– can have a better result for all concerned.

The union rep should be prepared to be an active partner in the accommodation process and can provide useful advice and guidance. However, the union must support accommodation measures even if they may not adhere to the terms of the collective agreement. The guide notes one of the responsibilities of the union is to work with the employer to “address existing barriers in the collective agreement” and ensure no new barriers are added.

There is no requirement for a perfect solution or for the specific one an employee may request. For example, take the case of a unionized worker at Ideal Roofing in Ottawa, an erstwhile truck driver who had a heart condition which had caused his AZ licence to be revoked. His union, the United Steelworkers, wanted the duties of a fork-lift driver to be unbundled so he could do only those not requiring a driver’s licence. It launched a grievance on his behalf, which eventually ended up in arbitration. The arbitrator dismissed the grievance. As the guide points out, the solution must meet the employee’s medically verified needs without causing undue hardship for the employer. In this case, the worker had been offered the job of a shipper but had turned it down. An employer is not expected to provide accommodation if doing so would result in unreasonable difficulties based on health, safety, and/or financial considerations.

The guide concludes by pointing out that in implementing accommodation measures, the employer should monitor their effectiveness not only by talking to the employee but also to his or her co-workers. It should also advise the employee of the appeals and complaints process offered by the Human Rights Commission.

A Guide for Managing the Return to Work can be found on-line at http://www.chrc-ccdp.ca/pdf/gmrw_ggrt_en.pdf

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