Under 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.
Doug MacLeod, MacLeod Law Firm
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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
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?