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Are we still having the discussion that an employee needs to be 100% recovered from an injury before she/he can return to work? According to a recent Nova Scotia Human Rights Board of Enquiry decision in Tanner v. Alumitech Distribution Centre Ltd., 2015 CanLII 15118 (NS HRC) apparently so.
John Tanner was involved in a car accident, unrelated to his employment with Alumitech, which resulted in his being off work from November 19, 2012 until he was cleared to return to work on September 17, 2013. Mr. Tanner could have returned to work earlier but was told by his supervisor that the company was not willing to accommodate his return to work unless he was able to resume his full duties.
As I read the decision I was struck by the fact that there are companies out there that still believe that they are not required to participate in the accommodation process. The obligation is to accommodate to the point of undue hardship, which is the antithesis of Alumitech’s you can come back to work when you can do 100% of what you did before approach. In Tanner v. Alumitech, however, undue hardship did not factor into the equation at all because at no point was any accommodation contemplated.
The President of Alumitech gave evidence that it would have been feasible for Mr. Tanner to do only driving duties on a temporary basis and to have someone assist in loading and unloading but he felt that Mr. Tanner was the person who should have made that suggestion. In fact, the President’s evidence was that the company had provided that kind of assistance for Mr. Tanner in the past when he had injured his wrist.
What made this injury different? It appears that the company did not give any consideration to light duties as it was thought that Mr. Tanner would only be off for a short period of time, and this was supported by medical notes that suggested that he would be back to work soon.
In the end, the Adjudicator found that Mr. Tanner had been discriminated against by reason of a physical disability which restricted his ability to perform his duties. Alumitech’s failure to provide transitional or modified duties meant that Mr. Tanner was subject to adverse treatment as he was not permitted to return to work until he could perform all of the duties related to his work as a delivery driver.
For the employers and HR practitioners the takeaway is that accommodation is not just a nice idea; it is not a favour that the employer undertakes for the disabled employee; it is not an option for an organization to participate in accommodation. Accommodation is the law.
All parties are required to participate in the accommodation process, the goal of which is to find an accommodation that is appropriate in the circumstances. The provision of transitional duties, light duties, modified duties, and bundling of duties are all options to be considered in the accommodation process that an employer must engage in.
It is not a defense for an employer to say that the employee should have suggested a particular accommodation as the employee is most often the person with the least knowledge and experience in the area of disability and accommodation.
About the Author: Toronto Employment Lawyer Kenda Murphy is a lawyer with over 20 years of experience in civil and criminal litigation. Over the course of her career she has been in private practice and worked in the public sector with the Public Prosecution Service, Department of Justice and Health Association Nova Scotia. Most recently Kenda was the Associate Director & Counsel of the Employee/ Labour Relations Unit at Queen’s University.