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Accommodating a disabled employee: Employers have the burden of proof when it comes to undue hardship

Accommodating a disabled employee: Employers have the burden of proof when it comes to undue hardship

Question: A part-time personal support worker, who has been off on non-workers’ compensation-based disability benefits, has produced a doctor’s certificate that she is able to return to work.

But the doctor has restricted her from performing duties we consider to be vital to the job. The nature of the restrictions limit the shifts we can schedule her for as she will be unable to work in some of our locations — mainly non-residential ones.

The employee’s doctor has requested that the employee return to work for a two- to three-week trial period after which her condition will be re-evaluated. I am concerned about proceeding in this way. How can I accommodate this disabled employee or, in fact, do I even have an obligation to accommodate this employee who is now unable to perform duties that are vital to her job?

Answer:This employee was not “injured on the job”. Because this is not a work-related injury, the obligations under Ontario’s Workplace Safety and Insurance Act are limited. Instead the main obligations which you will have to consider are those under the Ontario Human Rights Code.

An employer is under an obligation to accommodate such an employee. But the employer’s obligation is not limitless. If the employer can demonstrate that the level of accommodation will result in undue hardship it may be free of the obligation to accommodate.

In most cases undue hardship will be found to exist where an employer can demonstrate a quantifiable cost of accommodation which would alter the essential nature of the business or affect its viability. The employer should not simply focus on the restrictions an employee has which will prevent her from performing the job. There is an onus on the employer to obtain and assess the extent and nature of accommodation required.

This may require the employer to complete an actual cost estimate of the implications to the business. It is not sufficient for an employer to merely state it would result in undue hardship.

In order for an employer to fulfil the duty to accommodate, it is required to offer rehabilitative employment or to offer employment for a trial period to give the employee a chance to perform a modified job or other jobs that are available.

To determine whether or not accommodating this employee will result in undue hardship, adhere to the following:

•Inquire into the nature and extent of the illness or disability in order to determine what, if any, accommodation can be made.

•Determine whether the employee’s regular job can be modified to accommodate the employee. Where this amounts to an undue hardship, it must be determined whether other positions are available to accommodate the employee.

•Determine whether the employee is capable of performing any of the available positions. If a position is available and the disabled employee meets the minimum qualifications for the position, he or she should be offered the position in preference to a more qualified or senior candidate.

•The employer is not required to redesign the work place in order to create a new position. However, a few cases have held that if a number of existing tasks can be bundled into a job that an employee is capable of performing, that is required. But the job must entail productive work.

•The employer is not required to displace an incumbent in order to accommodate an employee.

Based on the facts you have provided, you are best advised to explore the options available to you to accommodate your employee’s return to work.

Your comments indicate this employee may be able to return to work to perform tasks during certain, yet potentially limited, scheduled shifts in certain designated areas, for example, in your non-residential locations. As this employee will only be returning to work for what appears to be a trial period, you are best advised to re-employ this employee and to accommodate her for the duration of this trial period.

Alternative options regarding this employee’s continued employment may present themselves in the coming weeks.

Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected]. Address questions for Peter to [email protected].

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