Under the Ontario Human Rights Code (the Code), employers, landlords, and service providers must accommodate people with disabilities. In other words, organizations have a duty to make changes in order to meet the needs of workers, tenants, customers, or clients with disabilities. In this article, we will explore the right of returning to work after acquiring a disability.
The Right of Returning to Work
Under the employment standards of the AODA, employers must develop plans to support workers who return to their jobs after a disability-related absence. Similarly, the Ontario Human Rights Code (the Code) also mandates accommodation for people returning to work with disabilities. Moreover, many guidelines governing returns to work under the AODA also apply to returning to work under the Code.
For instance, under the AODA, a worker can approach the employer, either through a manager or human resources personnel, and request a leave of absence. If the worker agrees, the employer and worker should stay in contact during the worker’s absence so that the employer can be aware of any changes in:
- when the worker will be returning
- what job tasks the worker may need to perform differently after returning
- what kinds of accommodations the worker may need
When the worker is ready to return, the manager and worker should continue to share information.
The worker has the most knowledge about their own needs and what accommodations will best meet those needs. At other times, the employer may ask the worker whether accommodation would help them perform job tasks.
Similarly, under the Code, someone may approach their employer to discuss accommodations they need after they return to work. Alternatively, the employer also has a duty to recognize that returning workers may have disability-related needs and require accommodations. As a result, if an employer notices that someone is having difficulty accomplishing tasks after a return to work, that person may need accommodations. The employer must start a discussion to determine how best to meet the person’s accessibility needs.
Next, the worker and employer should discuss what the worker’s accommodation needs are. During this discussion, the worker and employer do not need to talk about exactly what the worker’s disability is. Instead, they should discuss the functions of the worker’s job and the accommodations needed to perform those functions.
In some cases, the worker may return to their previous job with few or no accommodations. In other cases, the worker might remain in their previous job but exchange some job tasks with colleagues. A third option is for the worker to transfer to a different role or department. The option best for each worker will depend on how the worker’s disability affects the functions of their job.
For example, a worker may no longer be able to lift heavy objects. If their job rarely involved lifting, the worker could continue the job and use a cart for lifting boxes. If the worker’s job involved sometimes lifting heavy objects up and down stairs, a colleague could perform this function. In exchange, the worker could take on a different small task. If the same worker’s job involved lifting frequently, the worker might need a job that included less lifting.
Under the Code, workers have the right to return to their previous jobs, when possible. In other words, the employer cannot require the worker to go through a re-hiring process. Likewise, the employer should not automatically deploy the worker to a different job. Instead, the worker and employer must determine whether the worker can perform their original job with accommodations.
In addition, there is no time limit that prevents someone from returning to work. For example, an employer cannot create a policy preventing people from returning after an absence of three months or more.
Under both the AODA and the Code, an employer must keep a worker’s personal and medical information secure and confidential, and disclose it only to people involved in that worker’s accommodation process.
The right of returning to work ensures that workers have the tools and support they need to re-enter their previous jobs and work well after they gain disabilities. In addition, employers can retain talented, competent, and creative workers.