Position no longer exists for employee off for several years
Question: We have a 20-year employee who is planning to return to work after being on long-term disability for several years because of stress. His previous office job no longer exists and we don’t feel comfortable placing him in a job with a degree of responsibility similar to the level he was at when he left, even if one was available. We want to accommodate him, but we don't want to jeopardize our operation or trigger another episode of stress leave. What must we offer him in terms of position and compensation?
Answer: In this situation, the employer must ensure it complies with its duty to accommodate. It should also consider whether the position offered to the employee is likely to trigger a constructive dismissal.
Human rights legislation in all Canadian jurisdictions prohibits an employer from dismissing or discriminating against an employee on the basis of a disability, which includes a mental disability such as stress or clinical depression. Where an employee’s disability affects his ability to work, the employer has an obligation to take reasonable steps to accommodate the disability, up to the point of undue hardship.
The Supreme Court of Canada recently considered the “interaction between the employer’s duty to accommodate a sick employee and the employee’s duty to do his work” in Syndicat des employé-e-s de techniques professionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil. In Hyrdro-Québec, the Supreme Court said the standard to be imposed on employers was not whether it was impossible to accommodate, but to what extent it can accommodate.
“The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work,” the Supreme Court said. “Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided.”
Where a disabled employee seeks to be accommodated, the employee must provide the employer with sufficient medical information regarding her needs and limitations to enable the employer to meet its duty to accommodate.
In the situation outlined above, the employee’s pre-disability position has been eliminated, so it must be determined whether there is an alternative position to which he can be assigned. As part of the duty to accommodate, appropriate information regarding the employee’s medical needs and restrictions should be obtained and compared to available positions suitable for the employee. It is important to ensure the decision is based upon proper medical evidence, and not on assumptions or pre-conceived notions about the employee’s capabilities.
If possible, the employee should be offered a position with substantially similar responsibilities and compensation as the one he occupied before going on disability leave. Otherwise, he may take the position that he has been constructively dismissed and seek wrongful dismissal damages.
If the employer is unable to offer the employee an equivalent position, it may need to terminate his employment and offer an appropriate severance package. Keep in mind, however, termination in this type of situation may give rise to a human rights complaint, where accommodation efforts and the factors taken into account in the termination decision may be subject to close scrutiny.
For more information see:
•Syndicat des employé-e-s de techniques professionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil, 2008 CarswellQue 6436 (S.C.C.).
