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WHEN AN EMPLOYEE BECOMES DISABLED

How far does an employer have to go to accommodate an employee who becomes disabled?  The answer, surprisingly, is pretty far.  This article will discuss the employer's obligations in these situations and suggest some common sense approaches to addressing them. 

Human rights legislation and the Charter of Rights prohibit an employer from discharging or discriminating against an employee with a physical or mental disability.  In essence, the government has seen fit to place much of the burden relating to an acquired disability on the employer. 

The typical situation will arise where someone is injured or ill and their ability to perform their job is affected.  The courts have held that once an employee establishes a disability, the employer then has to prove it tried to accommodate the employee to the point of undue hardship or impossibility.  Not just a hardship, but an undue hardship.  In other words, the employee is heavily favored in these cases. 

The courts will consider several factors in making this determination.  Among them are the financial cost of the accommodation, the interchangeability of the facilities, the chance of interference with the rights of other employees and the impact on employee morale.  These considerations are to "be applied with common sense and flexibility in the context of the factual situation presented in each case". 

Examples of undue hardship are creating a new job position, trumping seniority rights and jeopardizing the safety of other employees. 

The employer will have to show that they looked into whether something could be done to the existing job by way of adjustment, adaptation, or modification, rather than merely examining whether the employee could perform his or her job.  In other words, the employer should document, in a written fashion, it's thought process in this regard and show the considerations it took into account in arriving at its decision.  Think it through, realize the onus is fairly heavy, and be practical. 

In the situation where someone falls ill, an employer has a duty to try to work with the person through the course of his or her illness.  They cannot simply fire them.  These things happen and it only seems reasonable for an employer to work with an employee to get them through a genuine illness.  For example, if an employee suffered a heart attack and was directed by their doctor to take a month off of work, an employer could not fire them.  

Excessive absenteeism due to an illness or injury may justify termination, subject to the duty to accommodate, if the employee is unlikely to be able to return to work.  An employer only has to go so far.  

So what's an employer to do?  Where there is a risk of injury on the job, the best advice is to take safety seriously and do your best to make sure something doesn't happen.  While it is not appropriate for every workplace, you could also buy disability insurance for your employees, or have them contribute to a plan.  A good plan is costly, but a cheap one is a waste of money. 

In the real rough and tumble world, it is highly unlikely that an employee with an injury or illness who is not able to work will be able to afford to bring an action of this nature against an employer.  Their only realistic option will be to make a complaint to the Human Rights Commission which has substantial powers to address these sorts of situations, including fines, compensation for lost wages and re-instatement.  While the commission may take some time to look into and enforce such a matter, from the writer's experience, they are fairly persistent. 

If someone is ill or injured and they have been a good employee, it only makes sense to try to accommodate them if you can.  It's in everybody's best interests to get on with the job to be done.  If it creates an undue hardship, then the employer is only expected to go so far.   

By Tom McCartney
September 15, 2003