So your employee is off work again for the third time this year, you have no idea when they are coming back and their physician’s note is a vague cipher. It is not a work injury, so you know you don’t have to worry about WSIB, but it is a staffing issue for your organization and a serious concern. What should you do?
WSIB return to work obligations vs the Ontario Human Rights Code duty to accommodate
Employers know that they have an obligation to participate in Early and Safe Return to Work (RTW) process with all work-related claims and are obligated to re-employ an injured employee to the pre-injury job, or to the pre-injury job with accommodation and failing that to provide other suitable employment options, also with accommodation as needed. For an excellent overview of RTW employer obligations, see the First Reference Post A new return-to-work approach: WSIB work reintegration policies. The WSIB obligation for an employer to re-employ a previously injured employee who is returning to work is very strong given certain conditions.
Employers may not know the extent to which they have similarly legally entrenched obligations when it comes to accommodating an employee’s RTW for a non-work related medical condition or injury. Ignorance of the condition (don’t ask don’t tell) does not relieve the employer of their duty to accommodate any disabilities covered under protected grounds by the Ontario Human Rights Code, which is quite broad in its description of mental and physical disabilities: What is disability?.
Accommodation of mental illness
Similarly the new voluntary standard: the “Psychological health and safety in the workplace – Prevention, promotion, and guidance to staged implementation” expands employer obligations for risk assessments and accommodations regarding mental health issues such as depression. The voluntary implementation of this non-legally binding standard will likely increase as companies take on the standard and employees use the standard in court cases regarding workplace related mental health claims. While the standard is voluntary, future case law will likely entrench some of its principles.
Policy best practices for return to work
A best practice in employer Return to Work policies is to have one policy that will guide both work-related and non-work related medical conditions or injuries. Best practices include:
- Early and frequent communication with employee during any absence
- Discussion of any special accommodation requests
- Employee consent to obtain medical or health information
- Medical information such as:
- WSIB claim – it will be a Functional Ability Form (FAF)
- Non-work injury or illness – employers may use a Fit to Work form that profiles physical and cognitive/psychosocial restrictions both at the beginning of a period of extended absence and before RTW process begins. (This is a reasonable request that gives the employer the information needed to accommodate the employee and is much more useful than the scribbled doctor’s notes with no information that seem to be handed out like candy at Halloween).
- Documentation of all communication with employee
- Involvement of direct supervisor and employee in devising the RTW plan
- Agreement and participation with the RTW plan by the employee and agreement on performance standards and expectations
- Ongoing communication regarding accommodations if needed and their expected duration
- Individualized accommodation efforts up to the point of undue hardship
- Support and understanding for the employee
Accommodation and the right to return to work
With a non-work injury or illness, some employers may believe that the duty to accommodate extends only to the pre-injury job and is not as stringent as the WSIB requirement. For example the Ontario Human Rights Commission (OHRC) states in section 4.3.3 Return to work of their policy:
The right to return to work for persons with disabilities only exists if the worker can fulfill the essential duties of the job after accommodation short of undue hardship. If a person cannot fulfill the essential duties of the job, despite the employer’s effort to accommodate short of undue hardship, there is no right to return to work.” Policy and guidelines on disability and the duty to accommodate.
However the duty to accommodate is up to the point of undue hardship, may require employers to modify performance standards and will require differentiation between essential and non-essential duties of the current job. The OHRC guidelines also state that the employee may be entitled to alternative work in some circumstances.
So, unlike the WSIB RTW mandate, the duty to accommodate does not necessarily guarantee a limitless right to return to work. But, employers who try to implement a RTW program that sets arbitrary cutoffs, inflexible return dates, does not consider modification of essential tasks or performance standards and/or refuses to consider alternative work, may be challenged as a violation of the Code and the Human Rights Tribunal may still find fault. Source: More about disability-related accommodation
The best efforts that an employer can make involve communication, documentation, accommodation and a requirement for specific medical evidence regarding medical restrictions and return dates. The employer is not required to invent a new job, but is required to evaluate its current positions and duties. Employers must make sure that they do not second guess medical information given to them, but they do have the right to ask for reasonable clarifications, specifics and in certain cases, the opinion of a specialist rather than a general practitioner.
Employers may not be able to avoid litigation or Human Rights claims, because anyone has the ability and/or right to make a claim, but proper policies, procedures and documentation can limit the potential damages. Know your process and procedures inside out, communicate them with employees, train supervisors and document, document, document for the best damage control.
Marcia Scheffler, M.A.
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Hey Marcia, thanks for taking the time to write this article it is really helpful.
My question is, in regards to non-WSIB cases. My mother was unable to perform work duties due to injury for the past year, and has now received clearance from a physician to return to work.
The employers (offices) are telling my mother that she can have the same job as she originally held. However, the supervisor on the job is saying that her duties will not be the same because someone else has already filled the original position.
My mom would very much like to return to work but only if it is the same duties she originally held. Anything else would be too strenuous for her and may re aggravate her injury.
In this case of conflicting messages coming from the head offices vs the on site supervisor, who is correct?
Marcia Scheffler says
I’m not sure. What I do know is that medical orders are often contested and both side can bring in different medical opinions. Both the worker and the employer may often make an appeal to a WSIB decicision and as evidence may choose to provide medical opinions from different professionals. It depends on the circmumstances is probably the answere…. Here is an interesting Supreme Court Case regarding a Human Rights Appeal to a WSIB decision: https://tedkenney.wpengine.com/2013/11/15/two-kicks-at-the-can-worker-allowed-to-re-litigate-wsib-accommodation-dispute-at-the-human-rights-tribunal/.
Ian mallett says
Very interesting article. But to your knowledge is there a ruling under any Ontario governmental act that obligates wsib to follow medical orders, or do they have they authority to supercede medical orders? Thank you. Ian mallett
Marcia Scheffler says
Of course it can be requested. What you could do is have the employee go back to the Dr and have the Dr. sign off on the duty modifications. If the reassessment shows that they can do modified duties they can then take this to their boss and make a request for the modified duties. The obligation for the boss is to reasonably consider modifications (up to the point of undue hardship). An injury can be a temporary disability and the employer should be careful about telling the employee that they can’t come back to work -especially if the employee has requested modified duties and has a Dr. reassessment to back them up. This is not legal advice – but please check this link for a definition of disability for further clarification for the employer: http://www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate/2-what-disability
Sandy Elder says
I have a question for you . If an employee has been given a hospital note concerning when an employee returns back to work after a off duty injury can they request duty modification so they can return back to their duties sooner than what was written on their note? They are now with loss of income and want to return back to work after a reassessment next week but were told by their boss to stay away for the duration. What is their rights in this matter ? They are slipping through the cracks because they can’t claim short term medical leave through the insurance provider and do not qualify for for any supplemental income through EI sickness benefits. etc. Thank you kindly for your help.