The better way to managing disability

A proactive approach to accommodation can help an employer be better prepared and positively affect the bottom line

Proactively managing disability, which has as its cornerstone the duty to accommodate, can significantly manage costs and positively influence the bottom line while treating employees fairly. Unfortunately, because of the emergence of a patchwork of cases and principles, the scope of the duty to accommodate has become a nebulous and misunderstood subject. Often, HR departments adopt a defensive rather than proactive strategy when managing absences, thus adding cost to the corporation.

Fortunately, the Supreme Court of Canada has recently clarified the duty to accommodate and the role of the workplace parties in the return to work process.

In Keays v. Honda Canada Inc., the Supreme Court of Canada acknowledged employers are permitted to manage absenteeism by requiring the absent employee to supply medical information that permits the employer to determine if accommodation is possible. Many employees view these requests as intrusive and sometimes such complaints may be justified. However, as the Supreme Court noted, an employer has a responsibility to monitor absences as part of the duty to accommodate.

In Syndicat des employé-e-s de techniques professionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil, the court dealt specifically with the nebulous concept of undue hardship. The union argued undue hardship only occurred where the employer established it was impossible to accommodate the employee. Support for this view, the union argued, came from the court’s earlier decision in Meiorin. The court disagreed and held:
•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 her work.
•The purpose of the duty to accommodate is not to alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.
•If a business can, without undue hardship, offer the employee a variable work schedule, lighten her duties or even authorize staff transfers to ensure she can do her work, it must do so.
•If the proper operation of the business is hampered excessively by an employee’s illness or an employee remains unable to work for the reasonably foreseeable future even after an attempt to accommodate, the employer will have satisfied the test.

What does this mean for disability management?

The employer, employee, physician and union, if there is one, all have a role to play in accommodation. While it is true the employer is best positioned to determine whether the employee can be accommodated, the employee has an obligation to co-operate. Accordingly, it may be appropriate, subject to any collective agreement or other contractual limitation, to require medical information to allow the employer to determine whether accommodation is possible and confirm the absence is related to a disability.

When medical information supplied by the employee is vague or of little assistance, the employer should not accept it but should request better information. If the employee does not co-operate, this may have implications on disability or workers’ compensation benefits and become a disciplinary matter.

This is not to say the Supreme Court of Canada has given employers the green light to deal with employees who are absent from work due to illness or disability in a manner that is harsh or unreasonable. It emphasizes employers should adopt a strategic and individualized approach when managing absences. This is not an area where a “one size fits all” or “off the shelf” plan will win the day. In fact, courts and arbitrators have frowned upon a mechanical application of policy in disability management.

The employer is in control of managing a disability and should drive the process at every step. The employer should not abdicate that responsibility to a third party, such as the employee, the doctor, the insurer or workers’ compensation board, but should take and maintain control of the process and manage the return to work within the legal limits that are now becoming better defined. Though each of the workplace parties has a role to play in the accommodation process, it is the employer who controls the process.

For more information see:

Keays v. Honda Canada Inc., 2008 CarswellOnt 3743 (S.C.C.).
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.).

Michael Fitzgibbon is a partner practicing management-side labour and employment law at the Toronto office of Borden Ladner Gervais LLP. He can be reached at (416) 361-7365 or mfitzgibbon@blgcanada.com.

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