The accommodation marathon

Workplace safety should be a priority for employers, and for most it is, whether because of legal requirements, productivity concerns, or a genuine concern for employee safety.

But the reality is, it’s hard to avoid workplace injuries completely and people do get hurt. And, of course, people get hurt outside of work. It all means that employers often have employees working while they’re injured and not at full capacity.

For workplace injuries, there are workers’ compensation regimes that can provide income replacement if employees have to take time off work to recover. For employees injured outside of work, some employers have short-term disability plans. In many cases, modified work can be provided.

Report highlights perils of injuries

However, sometimes injuries can linger. A recent report by the Institute for Work and Health revealed that 70 per cent of Ontario workers who were injured at work still experience pain 18 months later. A quarter of those say that their pain is bad enough to cause substantial impairment, and nearly half say they had mild pain that interfered with normal activity.

Employers should pay attention to a report like that, as it means that a worker who was injured at work may still be having difficulty, even if their workers’ compensation claim has been closed or, on the other hand, if they’re still requesting accommodation.

Ignoring or downplaying an employee’s need for disability-related accommodation could spell legal trouble.

Disability-related comments equal discrimination

Take a recent case in Alberta, where a car dealership hired a mechanic who had ADHD and PTSD. The worker said that she coped with her disabilities by talking to herself and tapping. However, her manager told her multiple times to stop making noise and misbehaving, while also advising her that she should try to live medication-free. Finally, when the worker took a medical leave, she was fired.

The Alberta Human Rights Tribunal awarded the worker $30,000 in damages for the discrimination and another $20,000 for reprisal that came from the employer filing a professional complaint against the worker after it learned of her human rights complaint.

However, employees requesting ongoing accommodation for a physical disability also have to support their request and employers are entitled to medical information that conveys what type of accommodation is needed. They aren’t entitled to private details, but enough about the employee’s prognosis and limitations to all them to accommodate.

More information needed

Earlier this year, a lumber mill in Alberta successfully defended a complaint of discrimination from an employee who requested fixed daytime hours because they would be “beneficial” for her mental disability. The worker provided a doctor’s note that said her medication could cause drowsiness on irregular shifts, which concerned the safety-sensitive employer. A further note said the worker was medically fit to work and reiterated the need for steady shifts, but the employer wanted clarification on the medication’s effects as it applied to its shift work as it needed her to transfer to another shift.

The employer continued to request information on the employee’s medical restrictions, but the employee didn’t respond, so it terminated her. The tribunal found that the medical information provided by the employee wasn’t enough for a large, safety-sensitive workplace such as the mill and the employer was entitled to know more about the employee’s restrictions around shift work rather than just working a steady shift.

As a result, the employer wasn’t required to accommodate the worker until it had enough information to explore the options.

Premature IME

It didn’t go as well for a B.C. public service employer when an employee provided a medical certificate stating that she was experiencing pain and severe fatigue due to an autoimmune disorder. The employer agreed to recommended modifications such as a later start and finish time and working from home two days a week. When concerns arose over the employee’s performance, she provided more certificates recommending a later start – to finish after regular business hours – and more days at home. Another doctor performed a fitness-for-work assessment and couldn’t recommend the accommodations because the condition was “self-reported,” so the employer scheduled an independent medical examination (IME).

Communications between the employer and employee deteriorated and the employee never attended the IME. The BC Human Rights Tribunal found that the medical certificates triggered a duty to accommodate and it was unnecessary to request an IME when the employer was already receiving medical information.

It was also reasonable to temporarily accommodate the worker while full accommodations were discussed, said the tribunal in dismissing the employer’s application to dismiss the employee’s human rights complaint before proceeding to a full hearing.

Employee must provide sufficient information

It is important for both sides to participate in the accommodation process, and the accommodation only has to be reasonable, not exactly what the employee wants. A federal adjudicator recently dismissed an unjust dismissal and discrimination complaint against an employer that terminated an employee after a failed accommodation process. The employee refused to comply with the employer’s request for medical information supporting the need for several small breaks during the workday and to attend an IME because he believed that a doctor’s note relating to restrictions from a three-year-old functional abilities evaluation was sufficient.

The adjudicator disagreed with the employee, finding that the employer needed more information to determine the employee’s fitness for work and accommodation needs.

Employee injuries, whether physical or mental, can take some time to heal, and sometimes accommodation may be needed to go on for a while. Employers have a responsibility to accommodate workers with disability wherever possible, but employees have to provide the information necessary to determine what needs to be done. Otherwise, more than just the injury may linger.