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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