• First Reference
  • About us
  • Contact us
  • 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 injured workers vs. accommodating disabled employees

By Doug MacLeod, MacLeod Law Firm | 2 Minutes Read May 13, 2014

Accommodating injured workers vs. accommodating disabled employees

injured-workerUnder the Workplace Safety & Insurance Act (WSIA), an employer who employs 20 or more employees generally has a duty to re-employ an injured worker who has at least one year continuous service. And under the Ontario Human Rights Code, an employer has a duty to accommodate an employee with a disability.

The duty to re-employ is however different than the duty to accommodate.

In particular, section 41 of the WSIA provides that if a worker is medically able to perform the essential duties of her pre-injury employment, then the employer shall, among other things, offer to re-employ the worker in the position that the worker held on the date of injury. If however the worker cannot perform the essential duties of her pre-injury employment then the employer must offer the worker the first opportunity to accept suitable employment that may become available with the employer.

This can be contrasted to section 17 of the Ontario Human Rights Code which provides that an employer can discriminate against a disabled employee if she is incapable of performing or fulfilling her essential job duties. This defence is not available however unless the employer can prove that the person cannot be accommodated without undue hardship.

Accordingly, under the WSIA an employer is required to re-employ a worker who cannot perform her essential pre-injury job duty in whereas under section 17 of the Code no such specific obligation exists.

There are employees who claim they cannot work because of mental stress that is caused by the workplace. The WSIB does not approve claims for mental stress unless it is caused by an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment.

The Workers Compensation Appeals Tribunal is however expanding the number of mental stress claims that fall within the “sudden and unexpected traumatic event” exception. If this trend continues then more and more employers will be obliged to re-employ mentally stressed employees to suitable positions (as opposed requiring these employees to prove they can perform the essential job duties of the pre-injury position).

If a supervisor is causing the mental stress then these workers will no doubt be seeking suitable employment in another department.

This trend will result in an earlier return to work for mentally stressed employees. It will also place an increased burden on organizations who employ 20 or more employees to find suitable work for mentally stressed employees.

  • 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, Health and Safety, Human Rights / duty to accommodate, duty to re-employ, employee with a disability, essential job duties, human rights code, in the course of employment, Injured worker, mental stress, pre-injury job duty, re-employ a worker, sudden and unexpected traumatic event, undue hardship, Workers Compensation Appeals Tribunal, workplace, Workplace Safety & Insurance Act

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]

Reader Interactions

Comments

  1. Doug MacLeod says

    May 15, 2014 at 12:19 pm

    Hi Julie,

    It is generally very difficult for an employer to prove that accommodating an employee’s disability results in undue hardship. When considering undue hardship under the Ontario Human Rights Code an adjudicator will consider the cost of the accommodation, outside sources of funding, if any, and health and safety requirements, if any. It is unclear from your question what form of accommodation the employee is requesting. The Ontario Human Rights Commission has published guidelines which discuss an employer’s duty to accommodate that are available on the Commission website. These guidelines do not have the force of law but are considered by adjudicators appointed under the Code. Doug MacLeod

  2. Julie Farnsworth says

    May 13, 2014 at 5:56 pm

    This is such a timely post for me as I am dealing with a situation currently whereby the employee is unable to work due to non-work related disabilities. It’s so difficult to determine ‘undue hardship’ for a small to mid size business. Doug – how does one define that aspect of the HRC and what if they work in a position that is remotely based away from the main company headquarters?

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