By: Dan Birch
DECEMBER 2010
The Human Rights Tribunal of Ontario seems to be a more frequent stop for injured workers with accommodation concerns since changes to the provincial human rights system were adopted two years ago.
“It’s becoming increasingly more common,” notes Ryan Conlin, a partner at SBH Management Lawyers in Toronto.
The 2008 amendments to Ontario’s Human Rights Code sought, in part, to get claims before the tribunal more quickly. That objective is being realized, but the process is leaving some employers to concurrently deal with both the tribunal and the Workplace Safety and Insurance Board (WSIB), Conlin says.
Such was the case for Toronto Community Housing Corporation (TCHC), which the tribunal chastised in an April, 2010 ruling for discriminating against an
injured employee by failing to give “appropriate consideration” to his accommodation request.
Before the changes were ushered in, complaints were first filed with the Ontario Human Rights Commission, which would determine if the matter should be addressed by the tribunal or by appeal processes under the Workplace Safety and Insurance Act (WSIA).
Tribunal vice-chair Brian Cook writes in his decision that the code’s applicability to return-to-work (RTW) cases “may have been somewhat obscured” prior to the reforms. Now, however, it is quite clear the code applies “to the interpretation of the WSIA,” Cook notes.
Laura Lunansky, a lawyer and a member of the Toronto Injured Workers’ Advocacy Group (TIWAG), contends that employers and the WSIB previously paid little attention to the undue hardship standard outlined in the code. Lunansky acknowledges the cases TIWAG handles are usually the tougher ones, with fewer success stories vis-à-vis accommodation.
But since the changes to the Ontario code, injured workers “are actually taking their complaints to the human rights tribunal and getting somewhere,” she
suggests.
Clarification is welcome in light of the differences between accommodation standards under some WSIB policies and the code. Cook notes that, under the former, the question asked of the employer is as follows: is suitable work available? Under the latter, the question is: can you accommodate the worker’s disability, to the point of undue hardship?
In defining undue hardship, Ontario’s code directs employers to consider factors such as cost, outside sources of funding and occupational health and safety requirements.
WSIB spokesperson Christine Arnott notes that board policies define suitable work as that which is within the employee’s functional abilities; is compatible with the worker’s existing or learned skills; is not an oh&s risk to any worker; and restores the worker’s earnings, if possible.
Workplace accommodation is often necessary to make a particular job “suitable,” Cook writes, noting that the WSIB offers various resources to this end,
including ergonomic assessments, functional ability evaluations and RTW mediators. That does not mean, however, that accommodation will be in line with the undue hardship standard. Where that is the case, employers are at risk of violating the code.
Employers and workers alike must appreciate that a WSIB ruling in favour of an employer’s accommodation efforts is not necessarily the final word that the accommodation is adequate, Conlin explains. “It does not bar the tribunal from coming to a different conclusion,” he says.
Kenneth MacLean, a partner at Boyne Clarke LLP in Dartmouth, Nova Scotia, notes that in his home province, Workers’ Compensation Board (WCB) decisions “would be relevant and potentially persuasive… but would not automatically settle the issue.”
Whatever the WCB’s decision, the Nova Scotia Human Rights Commission “may still take the view that the employee’s particular condition should be applied to the broad definition of ‘disability’ in the Human Rights Act.”
Conlin suggests the best defence “is to have a process in place [that] proactively complies with both WSIB and code requirements.” Lunansky adds it would be useful if the WSIB reminded employers of their code obligations in writing.
Travel plans
In the Ontario ruling, Cook considered the case of Randolph Boyce, a former community patrol officer with TCHC, whose job was to deal with security issues arising at the corporation’s housing facilities. In March of 2005, Boyce was doing paperwork at a desk when his chair collapsed and he suffered a right knee injury, for which he later was granted full WSIB loss-of-earnings benefits.
One month after his injury, Boyce was offered a dispatcher position. He responded that he was not physically able to get to the workplace because of his
ongoing knee pain.
In June of 2005, TCHC proposed a temporary position as a parking enforcement administrator in downtown Toronto. Again, Boyce, who lived in the city’s east end, declined the position because he would have difficulty getting to the site, an assertion that was later supported by a WSIB appeals resolution officer.
In 2008, TCHC approached Boyce with a third job offer, this time as a dispatcher at the same downtown location. He turned down the post and was fired for not reporting for work that the WSIB had determined was suitable and available.
Boyce brought his case to the tribunal shortly thereafter and also continues to pursue his claim through the WSIB.
In his ruling, Cook identifies three primary issues:
- Had the WSIB already appropriately dealt with the substance of Boyce’s complaint?
- Was the tribunal case an abuse of process?
- Did TCHC discriminate against Boyce by failing to accommodate to the point of undue hardship?
To the first question, Cook ultimately answered no. In particular, neither TCHC nor a WSIB claims adjudicator followed up on the possibility of providing Boyce special permission to park at the downtown location.
On the second issue, TCHC argued that Boyce was attempting to appeal the claims adjudicator’s decision to the human rights tribunal rather than following the appropriate WSIB channels. Cook rejected the charge, again citing the failure to investigate the substance of Boyce’s complaint.
On the final question, TCHC did not accommodate to the point of undue hardship because of the parking issue and because it “failed to properly consider” Boyce’s request to perform a parking administrator job at an alternate location.
In a recent interim decision, Cook notes the parties have been asked to prepare submissions on possible remedies.
Jurisdictional dance
Interplay between human rights codes and workers’ compensation laws is also an issue elsewhere in the country. For example, it is not uncommon for injured workers to contest WorkSafeBC decisions and also file complaints with the British Columbia Human Rights Tribunal, reports Heather Hettiarachchi, an associate at Clark Wilson LLP in Vancouver. Unlike the Toronto case, however, claimants often also allege that they have “been discriminated against on the basis of one of the other grounds protected by the code,” Hettiarachchi points out.
Under British Columbia’s Workers’ Compensation Act, she notes there is no defined limit on the number of accommodations that an employer must offer to a returning worker.
Hettiarachchi advises employers to take note of the undue hardship standard by considering “all reasonable alternatives,” such as if the worker can perform his existing job in a modified form, another existing job, or another job in a modified form. The worker, for his part, “has an obligation to co-operate actively and reasonably in this process.”
MacLean says that it all comes down to undue hardship. “An employer is not generally obliged to continue to try and accommodate an employee who is unreasonably refusing to cooperate,” he says.
Cook notes that Ontario’s WSIA, in conjunction with WSIB policies, “creates a system that is compatible with the code related duty to accommodate.”
But Conlin points out that there are limits since the re-employment obligation under the WSIA only applies in certain circumstances, such as to a worker
who has been continuously employed by the company for at least a year before the injury, and to an employer who regularly employs 20 or more staff. The code duty has no such restrictions.
In Nova Scotia, “where the employer claims that the accommodation will cause undue hardship, the onus is on the employer to show adequate evidence of the detrimental impact on productivity, the operation or the profitability of the business,” WCB policy notes.
Both Hettiarachchi and Lunansky say that human rights codes ultimately trump workers’ compensation law. In Nova Scotia, MacLean explains, “human rights legislation takes precedence in the sense that it is not limited by the application of any other act.”
Given that Ontario employers always face the potential of having to meet the code’s undue hardship standard, the argument could be made that the WSIB should simply enforce the standard in every instance.
In its policy on RTW services, Alberta’s WCB notes that there is no strict requirement for employers to rehire injured workers. However, it cautions, “human rights legislation applies to workers’ compensation situations in the same way as other disabilities.”
Lunansky, who says she has seen injured workers returned to less than ideal conditions, argues that employers must be held to the higher human rights accommodation standard.
She says her hope is that employers will take “that extra step” beyond the injury and consider issues such as non-compensable medical problems and family scheduling as part of accommodation efforts.
Dan Birch is assistant editor of OHS CANADA.
Charting a Course
Navigating return-to-work (RTW) requirements under workers’ compensation and human rights legislation is no simple task. Ryan Conlin, a partner at SBH Management Lawyers in Toronto, Heather Hettiarachchi, an associate at Clark Wilson LLP in Vancouver, and Kenneth MacLean, a partner at Boyne Clarke LLP in Dartmouth, Nova Scotia, offer some tips:
- An employer must document what duties and modifications were considered, says Conlin. “It may be months or even years” before an employer offers evidence before a tribunal, and proper documentation will be of assistance.
- Hettiarachchi recommends that an employer involve the worker in RTW discussions from the outset. “After all, it is the employee who needs the accommodation,” she says.
- A written RTW plan should be available and carefully monitored, Hettiarachchi advises, since modifications may be required as the plan is rolled out.
- MacLean urges stakeholders to be mindful that workers’ compensation rulings can carry weight in human rights proceedings. He reports that his firm has had success in using prior workers’ comp decisions to argue that a worker is not disabled or that he is not cooperating reasonably.
Reproduced from http://www.ohscanada.com/issues/story.aspx?aid=1000395266