Will A Disability Leave Affect My Job Security?

Under provincial and federal human rights legislation, an employer is required to reasonably accommodate an employee’s medical restrictions to the point of undue hardship.

In Ontario, pursuant to both the Ontario Human Rights Code and the Canadian Human Rights Act (applicable for federally regulated employees), it is against the law for an employer to terminate or otherwise penalize an employee because the employee suffers from a disability. Disability can be physical illness or mental health illness, such as depression, anxiety, post-traumatic stress disorder, or addiction.

An employer has a legal duty to accommodate an employee’s medical restrictions to the point of undue hardship. Depending on the health restrictions, a workplace accommodation may involve a disability leave, reduced work schedule, modified job duties, increased breaks, or temporary reassignment. Specifically, the Supreme Court of Canada in 2008[1] stated:

“… the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.”

This does not mean that the employer must provide the employee with his or her preferred accommodation, but rather a “reasonable” accommodation that will allow the employee to keep working in a meaningful manner.

However, employees must remember that accommodation is a two-way street. Those who require or are requesting accommodation must inform their employer of their medical restrictions and provide relevant prognosis information. Adequate medical documentation from a treating health professional should be furnished. It should not be assumed that the employer is aware of the disability, or even if made aware, that the employer knows what type of accommodations may be required. That said, even if the employer is not specifically told about the disability or medical restrictions, the duty to accommodate may still be triggered if the employer ought to know of the employee’s needs, from all the relevant circumstances. In other words, if the employer reasonably believes that the employee has a medical condition requiring accommodation, it has a duty to inquire about the need for accommodation.

If a leave of absence is required for health reasons, employees should review their employer’s sick leave benefits, as well as their group benefits plan to verify if there are short-term disability (STD) and/or long-term disability (LTD) benefits. If paid disability benefits are not available, then employees may apply for government paid employment insurance benefits.

In the event an employee is concerned about disclosing sensitive health information to his or her employer, it may not be necessary to provide his or her medical diagnosis but provide just enough medical information on a “need to know” basis to allow the employer to assess and implement the necessary accommodation. Under privacy legislation and under the common law, employers have an obligation to safeguard and treat health information confidentially.

Call the Workplace Disability Lawyers

If you are worried that your job may be in jeopardy because you need workplace accommodations or a disability leave or you have been let go from your job after returning from a disability leave, call us today at 416-583-1920. We at Pak Smith Employment Lawyers are experts in workplace disability rights.

[1] Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 (CanLII) [Hydro-Québec] at paras. 14, 16.

By |2020-09-03T03:55:33-04:00February 26th, 2020|Article, Article-All|0 Comments

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