Duty to accommodate employment injuries now more onerous

On June 15th 2015, the Quebec Court of Appeal changed the rules regarding the determination, in a right-to-return-to-work situation, of a suitable employment by saying that the Charter of Human Rights and Freedoms applies to such cases.

When a worker still has functional limitations following an employment injury, an evaluation process of the pre-injury position is performed by the Commission de la santé et de la sécurité au travail (the CSST) in concert with the employer. Following this process, if the pre-injury position is not compatible with the functional limitations, the employer could notify the CSST that the position could not be adapted and that no other suitable employment was available in the employer’s establishment. The employee is then taken in charge by the CSST to ensure the vocational rehabilitation of the worker in the labour market. This was done without examining the accommodation efforts made by the employer. The Court of Appeal rendered a precedent-setting decision which changed the situation.

From now on, the provisions of the act respecting Industrial Accidents and Occupational Diseases, which foster the worker’s rehabilitation and his right to return to work, have to be applied in light of the charter’s provisions. Indeed, reminding us that the charter goes beyond the law, the contract of employment and the collective agreement, the Court of Appeal stated that the duty to accommodate employment injuries is now inherent to the act. Consequently, the right to return to work of an employee with functional limitations following an employment injury calls for an accommodation, just like for handicaps of a personal nature.

In addition, the act provides that a worker has a right to return to work for one to two years, depending on the size of the establishment. However, the Court of Appeal decided that this time limit is only a factor to consider, without being decisive. Therefore, the employer can no longer automatically close the file of an employee as soon as his right to return to work expires. The general rules of accommodation still apply. Consequently, the worker could successfully claim his right to return to work even after the expiration of the act delay.

In other words, even though the act does not impose on the employer an obligation to find suitable employment for a worker in its establishment, nor re-hire the worker after the expiration of the right to return to work, the charter adds to the provisions of the act and imposes these duties to the employer, to the point of undue hardship. The CSST (and the Commission des lésions professionnelles in the event of dispute) will therefore not be able to apply the act literally, and will instead have to make sure that the employer, while considering suitable employment, tries to accommodate the injured worker, to the point of undue hardship.

Practical tips for employers

• Perform an analysis in order to identify all possible accommodations when the injured worker begins his rehabilitation: saying that no suitable employment is available without actually making any efforts to find a position compatible with the worker’s limitations will not be sufficient.
• Suggest to the CSST, when it is performing an analysis of the pre-injury employment, to also evaluate other available positions that could potentially be compatible with the identified functional limitations.
• Conserve and update, when available, an ergonomic analysis of the requirements for each position, in order to be able to provide alternatives or to anticipate undue hardship situations.
• As the expiry of the time-limit for exercising the right to return to work approaches, gather all the complete updated medical information and prognosis of the injury in order to evaluate if this right may be exercised.
• In unionized environments, involve the union in the search for alternatives, since it also has a duty to collaborate with regard to accommodation.