More than just waiting for a vacant position

Accommodation of an employee returning to work

Some employers mistakenly believe the accommodation of an employee returning to work following a period of disability leave is simply a matter of waiting for a suitable vacant position to arise.

But an Ontario Board of Inquiry decision has made it clear that employers must revisit this thinking and may actually have to consider a variety of accommodative measures. In the Metsala vs. Falconbridge, [2001] O.H.R.B.I.D. No. 3 decision, a long-term employee whose employer failed to take adequate steps to accommodate her return following a period of disability leave was awarded damages for lost wages and $10,000 in general damages.

On Dec. 11, 1989, Dawn Metsala started a disability leave from her position as payroll clerk with Falconbridge. While on the leave she was diagnosed as suffering from reactive depression and chronic fatigue syndrome. Shortly before her disability benefits were cut off in June 1992, her physician completed a certificate of fitness. While he indicated she was unfit for her regular job, he did recommend “half-day, non-intense office work — if available.” He did not indicate how long the restrictions might last.

Metsala then provided the certificate of fitness to Falconbridge, and told them the restrictions were temporary and would be applicable for no more than four weeks. After receiving no response, she called Falconbridge several times over the next two weeks to inquire about reinstatement.

She was told they were aware of her situation and to stop calling. Following this conversation, no one contacted her or her physician about a return to work in accordance with her restrictions.

Between June 1992 and December 1993, Falconbridge had several clerical positions available on a contract basis. Metsala was not considered for these positions because it was thought she did not have the necessary skills and the jobs would be too stressful. This conclusion was reached without the benefit of any discussion with either Metsala or her doctor.

Notwithstanding, there were numerous examples in the evidence before the board of situations in which disabled employees in receipt of short-term disability benefits were placed in clerical positions for which they had no experience or skills. Metsala was ultimately returned to work at the end of 1993 as a full-time production clerk in fulfillment of what Falconbridge believed to be their duty to accommodate.

As a result of her treatment from 1989 until her return to work in December 1993, Metsala filed a complaint with the Ontario Human Rights Commission alleging Falconbridge had discriminated against her on the basis of handicap by failing to adequately accommodate her return to work.

The board concluded Metsala was treated differently compared to other employees with medical restrictions because of the assumptions Falconbridge made about the effects of her particular handicap, a mental disorder, and because of their failure to make the appropriate inquiries to gather accurate information.

Furthermore, the board found Falconbridge’s failure to consider her for contract clerical work, for general clerical duties or for medical placement into the production clerk position constituted a prima facie case of direct discrimination on the basis of disability.

The board concluded Falconbridge was obliged to ascertain Metsala’s medical condition and she had an obligation to co-operate in any inquiries Falconbridge made. Ultimately, Falconbridge was found to have failed to establish it had an objective basis for concluding that Metsala was incapable of fulfilling the duties associated with the available work between June 1992 and December 1993.

Falconbridge put forward little evidence that returning Metsala to work would have entailed undue hardship. The company’s only real argument in this regard was they had no obligation to create a job. The board appeared to steer clear of any conclusion that there exists a general obligation to create a job, but it was held that because Falconbridge had done so for others in the past, it was also necessary to do so in this case unless undue hardship could be demonstrated.

The board ultimately held Falconbridge could only free itself from the obligation to return Metsala to its active workforce if it could demonstrate that she could not have performed the essential duties or requirements of the contract positions or general clerical duties and that to have returned her to work in either capacity would have constituted undue hardship.

In the end, the board found awarding Metsala the position in December 1993 did not constitute accommodation. Falconbridge’s obligation to accommodate Metsala arose in June 1992, when she presented the certificate of fitness.

In cases where an employer is approached by a disabled employee regarding the possibility of a return to work, the employer must be careful not to take action that could be seen as discriminatory (such as failing to treat the employee the same as others in similar circumstances or by failing to consider the employee for available positions based on the employer’s unfounded assumptions).

In such situations, Metsala makes clear that the board will impose a duty to accommodate which, at a minimum, requires them to conduct a thorough inquiry into the possibility of returning the employee to work and to undertake such a return in a timely manner unless undue hardship can be shown.

Michelle Johal is a lawyer with Rubin, Manning & Thomlinson in Toronto. She can be reached at (416) 593-4463 or [email protected].

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