• First Reference
  • About us
  • Contact us
  • 24th Annual Ontario Employment Law Conference 📣
  • Blog Signup 📨

First Reference Talks

Discussions on Human Resources, Employment Law, Payroll and Internal Controls

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies
You are here: Home / Accessibility Standards / Accommodating disabled employees: Can an employee demand to work at a different workplace?

By Doug MacLeod, MacLeod Law Firm | 2 Minutes Read May 10, 2016

Accommodating disabled employees: Can an employee demand to work at a different workplace?

mental-illness-at-workI have written a number of blogs on the challenges associated with accommodating employees with mental disabilities. I have also blogged on the new obligations that were imposed on employers with 50 or more employees earlier this year with respect to disabled employees including the requirement to prepare a written accommodation plan.

Can a disabled employee demand to be moved away from a co-worker?

I have been involved in a number of cases where an employee has claimed that he could not work in the same work space as a co-worker for mental health reasons and asked to be moved to a different physical location.

The case: Emond v. Treasury Board

In a recent case, an adjudicator concluded that an employer failed to accommodate an employee on long-term disability who requested that she be permitted to work in a different work location than a co-worker for mental health reasons. As a result the adjudicator ordered the employer to move the employee to another of its nearby workplaces, and to compensate the employee for the difference between the amount she received while on long-term disability and her salary due to the employer’s failure to accommodate.

The facts: The devil is in the details

Did a disability exist? The adjudicator concluded that the employee suffered from emotional stress caused by a co-worker. Although the adjudicator recognized that “stress cannot automatically be associated with a disability or an incapacity,” she concluded that the employee’s medical condition did constitute a disability or an incapacity, thereby triggering the employer’s duty to accommodate.

Was there medical evidence supporting the accommodation request? In the opinions of her general physician and her psychologist, the employee would be capable of returning to work if she was permitted to work in a different workplace than the co-worker. Although the employer suggested that the employee should attempt to return to work on a different floor of the same workplace, both of the treating physicians disagreed. The employer refused to permit the employee to work in a different workplace or from her home. The adjudicator commented that the employer did not call any rebuttal medical evidence nor discredit the employee’s treating physicians.

Lessons to be learned

  1. Do not refuse an employee request to move work locations for mental health reasons before carefully considering the reason for the request.
  2. Request medical reports in support of the employee’s request. If you are not satisfied with the documentation provided by the employee, send the employee to a physician or disability management consultant of your choosing if you have the right to do so.
  3. Prepare an individual accommodation plan under the Accessibility for Ontarians with Disabilities Act.
  4. Update your employment contract if your organization does not have the right to send a disabled employee to a doctor of the employer’s choosing.
  5. Maintain regular contact with the disabled employee and update the individual accommodation plan as needed.
  • About
  • Latest Posts
Follow me
Doug MacLeod, MacLeod Law Firm
Employment and labour lawyer at MacLeod Law Firm
For the past 30 years, Doug MacLeod, founder of the MacLeod Law Firm, a Canadian labour and employment law firm, has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at [email protected]
Follow me
Latest posts by Doug MacLeod, MacLeod Law Firm (see all)
  • Doug’s top 5 employment law stories of 2022 - December 13, 2022
  • Ontario government revokes law that violated unionized workers constitutional rights - November 8, 2022
  • Specific penalty clause renders an ESA termination clause unenforceable - September 13, 2022

Article by Doug MacLeod, MacLeod Law Firm / Accessibility Standards, Employee Relations, Employment Standards, Human Rights, Union Relations / Accessibility for Ontarians with Disabilities Act, accommodating disabled employees, accommodation plan, Disability, duty to accommodate, employment contract, employment law, individual accommodation plan, medical information, mental health, Relocation, Transfer

Share with a friend or colleague

Get the Latest Posts in your Inbox for Free!

Electronic monitoring

About Doug MacLeod, MacLeod Law Firm

For the past 30 years, Doug MacLeod, founder of the MacLeod Law Firm, a Canadian labour and employment law firm, has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

Footer

About us

Established in 1995, First Reference is the leading publisher of up to date, practical and authoritative HR compliance and policy databases that are essential to ensure organizations meet their due diligence and duty of care requirements.

First Reference Talks

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies

Main Menu

  • About First Reference
  • Resources
  • Contact us
  • 1 800 750 8175

Stay Connected

  • Facebook
  • LinkedIn
  • Twitter
  • YouTube

We welcome your comments on our blog articles. However, we do not respond to specific legal questions in this space.
We do not provide any form of legal advice or legal opinion. Please consult a lawyer in your jurisdiction or try one of our products.


Copyright © 2009 - 2023 · First Reference Inc. · All Rights Reserved
Legal and Copyright Notices · Publisher's Disclaimer · Privacy Policy · Accessibility Policy