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It Takes Two to Tango: Superior Court Rules on Employees’ Duty to Facilitate in the Accommodation Process

Employers have a duty to accommodate employees with disabilities to the point of undue hardship, including facilitating the return to work of employees who require disability-related accommodation. An important aspect of this duty is procedural, i.e. the steps taken to search for a reasonable accommodation. Even if an employer ultimately cannot accommodate without undue hardship, failure to engage in the procedural aspect of the duty to accommodate is a violation of the Human Rights Code.

A recent decision of the Ontario Superior Court addresses the limits on the employer’s procedural duties in the accommodation process with respect to an employee on a long-term absence from work due to disability.

In Nason v Thunder Bay Orthopaedic Inc., the Plaintiff, Mr. Nason, had been absent from work due to disability for a period of approximately two and a half years from August 18, 2010 to January 22, 2013. In April and June of 2012, he reached out to the employer to initiate return to work discussions. The employer attempted to call the Plaintiff to schedule a meeting but was unsuccessful.

The parties corresponded in January of 2013. However, the Plaintiff did not provide the employer with any medical information on his fitness to return to work or any restrictions he had, nor did the employer inquire. The Plaintiff ultimately became frustrated with the process and asked the employer if it was going to offer him a severance package. The employer interpreted this as the Plaintiff not wanting to return to work and sent him a termination letter.

The Plaintiff claimed that the lack of inquiry on the employer’s part into his progress and lack of requests for updated medical information in the two and a half year period constituted a violation of the procedural component of the duty to accommodate.

The court disagreed. It found that the onus is on the employee to not only initiate contact with the employer, but to provide all relevant medical information.  The court stated that, “A disabled employee must communicate the physical ability, not just the desire, to return to work”. The court relied on the principle that employees requesting accommodation must actively participate in the process, including providing information necessary for the employer to determine whether accommodation is available.

Ultimately, the court found that the termination was at least in part due to the Plaintiff’s disability and awarded him $10,000 in human rights damages.

Although this decision is encouraging for employers, it should be treated with caution. Whether or not the employer has a duty to inquire and request more medical information will come down to the facts of each case. In this decision, there was evidence that the employee had a fairly serious medical condition rendering him unable to work. The court found it was reasonable for the employer not to inquire into his status over the course of the two and a half year period. However, once the employer was engaged in discussions with the employee, whether the employer could continue to sit back and wait is questionable. In another case, an adjudicator could very likely rule the other way. Further, in most cases an employer should be following up with an employee absent from work due to disability to ensure that there is medical substantiation for the ongoing absence.

At the 17th annual Ontario Employment Law Conference, presented by Stringer LLP and First Reference Inc., an afternoon Breakout Session will focus on accommodating employees with disabilities, including practical advice on how to prepare an effective accommodation policy and requests for medical information. This is one of three afternoon Breakout Sessions that attendees can choose from. The Ontario Employment Law Conference will take place at the Corporate Event Centre at CHSI in Mississauga on June 2, 2016. We look forward to seeing you and helping you apply the latest employment and labour law changes. Come and learn the latest!

This blog was first published on First Reference Talks.

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