Workers’ Compensation & Return to Work
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Written on behalf of Peter McSherry
Accommodation of a Medical Disability under Workers’ Compensation Law
Human Rights Law
The issue of the duty to accommodate a medical disability has been reviewed in a previous post. In brief, this obligation requires the employer to consider the nature of the employee’s medical disability and accommodate or adjust the work environment with proper regard to the employee’s medical status. It is a human rights requirement which applies to all employers.
Workers’ Comp Law
Ontario’s Workplace Safety & Insurance Act (“WSIA”) is legislation which deals with a workplace accident. The scheme of this Act is to allow for certain monetary and medical benefits without regard to fault. It is a “no-fault” regime in this sense. This legislation removes the right of the employee to sue the employer for an unsafe work environment which may have caused the accident.
RTW
This statute also has a “return to work” (“RTW”) program enacted by statute. This law is, however, different from the “return to work” terms required by human rights law. It is not as protective as that offered by human rights law.
Some of the more obvious failings of the WSIA “return to work” obligations are as follows.
The remedy of RTW does not apply to all employees. The worker must have been employed for at least 12 months prior to the accident. The employer must employ at least 20 or more employees. The WSIA contemplates that the RTW will lead to full employment at the pre-accident position or a position which pays the same as the pre-accident position.
Should the employer fail to allow for re-employment, ironically the WSIA does not lead to an order of reinstatement. The defaulting employer is required to pay a financial penalty of up to 12 months’ salary.
Different rules apply to the construction industry. The obligation to accommodate is not open ended. It terminates the earliest of two years from the date of the injury, or one year from the date of the intended return to work, or other terms.
The summary of the above is that it is evident that the WSIA is not in compliance with human rights obligations.
A New Frontier
The Supreme Court of Canada[1] has in a very recent decision concluded that the human rights law applies, in this case, to the Quebec equivalent of Ontario’s WSIA. This has very wide repercussions. This decision will allow a Charter[2] challenge to set aside Ontario’s WSIA standards of RTW and impose the more protective requirements of the human rights law. This will have enormous consequences to all employees in receipt of WC and looking to return to work.
Let Legal Advice Guide Your Actions
Once again we see another example of a context in which the words you read will not necessarily define your rights. You need a qualified lawyer to go under the hood and give you a proper diagnosis of your rights and remedies.
If you are in receipt of WC benefits and considering a return to work, get advice to understand your rights and remedies. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation
[2] The Charter of Rights and Freedoms which provides for a challenge to legislation in violation of Charter rights
