Accommodating Disabilities in the Workplace

Have you been injured or become disabled and are unable to return to work? Our guide will help you understand your rights and potential claims.

Long Term Disability Lawyers & Employee Accommodations

The Canadian human rights legislation forbids discrimination against persons with disability within the workplace setting. The legislation defines a disability as either a physical or mental impairment. Thus, an employer should be aware of their obligations to accommodate disabled people to the point of undue hardship.

The phrase “to the point of undue hardship” regarding employee accommodation law creates many questions among employers; practical considerations need to be addressed in dealing with employees with disability. There are also the legal restrictions on termination and other related considerations for employees in a corporate setting.

Long Term Disability vs. Employee Accommodation

It should be noted that the two terms are not synonymous. In order to keep talented employees, companies offer varied benefits such as LTD, health insurance, etc.: When an employee gets an illness or injury that renders them unable to work, the first action they will take is to get long term disability benefits from their insurer – part-company part-private insurance.

In the event that an LTD claim is denied by the private insurance company, most employees get an insurance claim lawyer to file an appeal. This leaves the second option of getting benefits from the company. There are two misconceptions here:

1. That companies are obligated to pay LTD benefits in the event the employee fails to receive benefits from their private insurer based on the Human Rights code.

2. That companies do not have to pay LTD benefits because employees that had denied health insurance claims by their private insurance meant that they do not have valid disabilities and are therefore ineligible.

This is best explained by the following Duong v. Linamar Corp. case:

Recently, the employer Linamar Corp., successfully won over a wrongful dismissal action by a machine operator employee who had a severe back problem. The employee stopped working for over four years. During the first 24 months of unemployment, the employee was receiving long term disability benefits for his disability claim. However, this was stopped because he refused to undergo a mandatory rehabilitation program. Eventually, the employee was terminated on the grounds of frustration of contract.

The employee filed a case against Linamar Corp. for wrongful dismissal, breach of contract and breach of fiduciary duty. Newbould J. ruled that the contract was indeed frustrated. It didn’t mean that Linamar was obligated to employ the employee indefinitely because they decided to give him LTD benefits for a year. There was nothing in the contract that says the employee should be continually employed despite permanent disability. The verdict for the case was finalized based on the fact that there was no foreseeable date that the employee could go back to work.

In the above example, it was evident that the provisions on a corporate contract has a lot of weight on the verdict. In order to save your company from putting terminated employees on payroll indefinitely, you should seek help from Toronto disability lawyers in drafting a suitable employee accommodation agreement.

“Undue Hardship”: Defined

It should be agreed that the term should be evaluated on a case-to-case basis. The most common accommodations a company can commit to for their employees may include modifying duties or transferring to a more suitable position, renovating the worksite, giving technical aids, changing work hours and breaks, and providing special leaves.

The following are some factors that may affect this:

• Financial Costs – the accommodation should be based on the employer’s financial capacity to cover the costs.
• Size of Operations – when a large scale renovation is required in order to make the workplace suitable for the employee, it should be within reasonable bounds.
• Health and Safety Risks – the capacity of the employee to operate within a particular area or setting should be safe and does not pose any physical or mental risk. If it does, the employee is best transferred to another position.

How to Manage Employee Accommodation Requests

Ask for all the needed information related to the evaluation of a disability. While a company has no right to look into a person’s medical file, this is completely necessary if accommodation is requested. This is for the company to be aware of the individual’s limitations to perform his duties in the workplace.

Do not dismiss a disability without thorough investigation. Some disabilities, especially the mental kind, are usually considered non-existent by some skeptic employers even if there is medical evidence. This can be grounds for complaints filed by employees with the aid of disability insurance lawyers. Make sure not to abruptly dismiss a request without looking further into the case objectively.

• Assess each case individually. Consider all available options. Compile a detailed report of the steps you took, why they weren’t successful, and how you plan on correcting them. It takes a while to make an accommodation plan, but this is necessary in order to satisfy both parties.
• Assist employees in the application for LTD insurance. Provide all the needed information to encourage employees to get private coverage. You can get a long term disability lawyer Toronto to provide legal advice and keep them in track.
• Review and draft your attendance management program based on the applicable human rights legislation. Culpable disability-related absences should not be the same as culpable absenteeism.

Notice for Employers

his article will focus on what you should do in case you have employees currently with a disability.

The following steps are vital:

Once an employee requests for accommodation, ask for an independent medical examination that validates the disability.

• Employ disability insurance lawyers to help draft up an agreement and a list of requirements you might need if by any chance, the relationship is terminated and the employee files a complaint.
• Ensure that the employee applies for a disability claim from their private insurance company. It would be useful to provide assistance to the employee to ensure that they are successful. This will save your company from the liability of shouldering 100% of the welfare costs.
• In the case of denied health insurance claims, make sure to investigate the reason for dismissal before making a decision to terminate. Most denials are due to minor documentary issues and are not proof that the employee does not quality for disability.
• Make an accommodation plan based on every individual’s disability case and commence action as soon as possible. Make numerous viable options to offer the employee. Include rehabilitation programs if necessary.

If all of the above steps have been taken and the employee still refuses to go to work, you can start considering termination.

Terminating Employees with Disability

The Human Rights Code protects disabled employees from being terminated from work after they contract an illness or injury. However, this doesn’t mean that the company is bound to keep them under payroll until they are able to work again no matter how many years it takes.

The Code recognizes that there are disabilities that may render a person unable to perform duties similar to the duties he had before leaving work. In this case, the company can rightfully terminate the contract without it being considered a discriminatory action.

At common law known to all long term disability lawyers, an employee contract where an employee is unable to work due to disability can activate the doctrine of frustration. The main argument of the doctrine is that the employee is incapable of performing the essential functions of his position for a period of time enough to say that the employment contract has been frustrated, in a business or practical sense.

Take the case of Naccarato v. Costco Wholesale Canada Ltd. as an example:

The employee, Naccarato, was terminated on the basis of frustration because of his approximately 5-year long absence due to depression. He was employed by Costco Wholesale Canada Ltd. and received short and long-term disability benefits as mandated by their group insurance coverage. After the company terminated Naccarato, he brought an action for wrongful dismissal. The outcome of the case led to the employer being liable.

The reason for this is Justice A. Pollak’s preference to the approach used by the decision of the earlier case Skopitz v. Intercorp. Excelle Foods Inc. In the case, the doctrine of frustration can only be considered if:

• The employee is not capable of performing his previous duties ever again.
• It would be futile for the company to wait for the employee to go back to work any longer.
• The approach greatly emphasizes the importance of evidence proving that:
• The employee is incapable of going back to work; or
• That the company will suffer undue hardship if the employment contract is maintained.

Based on the above conditions, the company was unable to carry out their claim for frustration of the employment contract. This is because they failed to provide any medical evidence that the employee cannot get back to work in the foreseeable future. In addition to this, they were prepared to provide LTD benefits which suggested that they had anticipated that the employee will be out of work for a long time.

Therefore, termination can only be considered if you have exhausted all possible attempts to accommodate the disabled employee back to work. It would be useful to discuss your options with an insurance claim lawyer.

Complaint and Grievance Procedures

The issue with long term disability and employee accommodation is not a controversial one. If you establish a standard procedure for employees to voice out their concerns regarding such matters, most legal appeals are avoided.

An employer’s duty to accommodate under the Canadian labour law has limits. There should always be a balancing act between two fundamental issues;

• The right of a disabled employee to non-discrimination.
• The right of an employer to manage a productive workplace.

Toronto disability lawyers are well-informed about the most efficient way to handle complaints of such nature. If you want to avoid making actions that might endanger the company, it is essential that you seek expert advice.

There is much risk involved in employing persons with disability, but they can be reduced if you are more careful with your employee accommodation actions. The above case shows the importance of obtaining independent medical examination from concerned employees. Seek advice from a long term disability lawyer Toronto so you can reduce the risks of getting human rights complaints and civil claims.

We pride ourselves in providing personalized service, including extensive interviews and preparation for all clients and their witnesses. We believe that preparation is key to effectively, and successfully representing our clients.

Our experienced attorneys are available 24/7 to offer injury victims a free consultation . If you have been seriously injured and would like to speak to an attorney, we will make arrangements to travel to meet you. Call us today at (905) 940-5554.