Keeping injured workers in the fold

When someone is injured, a top concern is obviously how long it will be before they get better. And this goes hand-in-hand with when they can return to work, and what they will be able to do when they return. Sometimes, it turns out that they will never be able to do the same things as they once did and they face living – and working – with a disability.

Employers face a number of responsibilities when an employee becomes disabled. Disabilities are protected under human rights legislation, which means employers can’t take negative action – such as terminating their employment – because of a disability, unless there is no other choice. When the injury is work-related, there are even more obligations.

In BC, a new law just came into effect that requires provincially regulated employers to co-operate with employees and WorkSafeBC, the province’s workers’ compensation and safety authority, towards returning workers injured at work back to work safely. BC employers with 20 or more workers are also required to maintain the injured worker’s job if the worker has been with them for at least 12 months.

In order to maintain a worker’s position, BC employers are required under law to offer either the worker’s pre-injury work or a comparable alternative, or the “first suitable work” that is available if the worker can’t do their pre-injury duties.

Disabled workers’ rights

Laws like this are intended to protect workers’ rights so they don’t lose their means of living due to injury, but they can also help employers with equity, diversity, and inclusion initiatives – something that four out of five Canadians say should include disability, according to one Angus Reid poll. That same survey revealed that four in 10 Canadians living with disabilities think that Canadian companies aren’t effectively supporting employees with disabilities.

As far as employers’ legal obligations, back in 2017 the Ontario Human Rights Commission issued a policy position on disability-related accommodation, emphasizing that employers have a right to medical information that is necessary to determine an employee’s limitations and capabilities and expected return to work. However, that doesn’t extend to confidential medical information such as diagnosis and treatment. This means that employees have an important role in accommodation, as has been established in case law.

The BC Human Rights Tribunal dismissed one worker’s discrimination complaint that was based on the fact that the employer didn’t return him to his original pre-injury position. However, the employer accommodated the worker in a comparable position and the evidence indicated that the worker’s medical restrictions prevented him from working in his original job – WorkSafeBC had stated that it was no longer suitable for the worker. The accommodated position was sufficient accommodation, even though the worker wasn’t happy about it, the tribunal ruled.

The Alberta Human Rights Commission reached a similar conclusion recently regarding a worker who was unable to perform most of the manual labour that was part of his regular job following a back injury. A downturn in the industry lead to a dearth of alternative work, but the employer continued to pay him. The worker underwent training and other positions were assessed, the worker refused accommodated work that was offered and sometimes didn’t respond. The commission found the accommodation was reasonable and the worker didn’t live up to his obligations in the accommodation process.

Refused reasonable modified duties

Moving to Ontario, one worker claimed discrimination after she was “embarrassed” and didn’t like the modified duties assigned to her after an injury. She stopped coming to work, but the province’s Human Rights Tribunal found that the modified duties were reasonable and within her restrictions. It was the worker who ended the employment relationship by resigning, said the tribunal in dismissing the complaint.

Back in BC, another worker took a different route and filed an employment standards claim for termination pay because his employer allegedly fired him after he wasn’t able to perform his regular job after a workplace injury. WorkSafeBC determined that the worker had permanent disabilities that prevented him from performing his pre-injury job. There were no modified duties available, so the worker remained off work but still on the payroll. When the employer cancelled his extended benefits and company cellphone, the worker filed a wrongful dismissal complaint. However, the BC Employment Standards Tribunal found that the worker’s employment didn’t end, so there was no right to termination pay. In addition, there was no duty to accommodate under the Employment Standards Act, the tribunal said.

However, it’s not all roses for employers in accommodation, especially if the employee does live up to their part in accommodation. One Ontario employer had to pay an injured worker $80,000 after it fired the worker shortly after he applied for short-term disability leave. Regardless of whether the employer had a legitimate reason to dismiss the worker, it didn’t properly document any performance concerns or the termination process, which made the timing of the dismissal suspicious and likely discriminatory, said the tribunal.

In an Alberta case, an employer had to pay more than $58,000 to a worker with ADHD and PTSD, after the worker was criticized and mocked for various tics and habits related to her conditions. The award included $50,000 in damages for injury to the worker’s dignity from the discrimination, as she had only been employed for a few months.

When an employee is injured at work and develops a disability, it doesn’t necessarily mean the end of their employment – an employer could get in big legal trouble if it assumed such. Whether it’s meeting the duty to accommodate or encouraging diversity programs, keeping an open mind towards employees with disabilities will help avoid legal costs and negative workplace impacts.