Duty to Accommodate Guide

 

The duty to accommodate is usually thought of in terms of disability, but it relates to a broad range of individual differences among workers.

Individuals or groups who are protected under human rights legislation have the right to accommodation. While the federal, provincial and territorial human rights legislation cite varying prohibited grounds, it is best to check the legislation that applies to your workplace. The following grounds exist in most Acts and Codes:

  • Race or colour;

  • Religion or creed;

  • Age;

  • Sex or gender;

  • Marital Status;

  • Physical\Non-physical disability;

  • Sexual orientation;

  • National or ethnic origin;

  • Family status;

  • Ancestry or place of origin and

  • Addictions such as alcohol or drugs.

Some jurisdictions such as the North West Territories have included gender identity and social condition as a prohibited ground of discrimination.

The Employment Equity Act also requires employers to be proactive in identifying and eliminating employment barriers against persons in the four “designated groups”: women, “visible minorities” or racialized people, people with disabilities and Aboriginal Peoples 

The duty to accommodate requires employers to make every reasonable effort, short of undue hardship, to accommodate workers who fall under a ground of discrimination within human rights legislation.

An important Supreme Court decision (“Meiorin”) defined what the duty to accommodate means. This is what the court said:

  • Employers designing workplace standards have to be aware of differences between people
  • Employers must incorporate the concept of equality into workplace standards.
  • Workplace standards should be designed to reflect all members of society,

Standards must provide for individual accommodation

The employer must take all steps short of undue hardship to eliminate discrimination related to human rights grounds. For example, policies, procedures, requirements, standards and practices must be designed to ensure that those who have a lower level of visual acuity, or those who require a private area in which to conduct prayers, or those who require modified work hours for family care responsibilities, do not encounter barriers in the first place. If a policy, procedure, requirement, standard or practice is already in place then these must be revoked or replaced by one that is not discriminatory, unless it is found to be a Bona fide Occupational Requirement (BFOR) . (Note that this does not apply to discrimination arising from special programs designed to redress historical inequality such as employment equity.)

 

The duty to accommodate rests on the employer because it has ultimate control over the workplace. It must investigate all possible accommodations, and consult the union and employee. But while the employer has the main responsibility to accommodate workers, the Union also has a duty to accommodate. Employees needing accommodation have responsibilities as well.

Non-discrimination and/or duty to accommodate clauses are found in almost all collective agreements. As a result, a worker’s right to be accommodated is a collective agreement right.

The Union must:

  • Ensure that it does not negotiate provisions in a collective agreement that have a discriminatory impact

  • Work with the employer to proactively eliminate any discrimination that does result from provisions in a collective agreement

  • Cooperate with the efforts of the employer to accommodate workers

If the employer does not take its responsibility seriously, the Union should insist that the employer take the necessary action. In most cases, the Union should support accommodation measures because collective agreement provisions can and should be interpreted and applied in a way that avoids a discriminatory impact. However, the union does not have to support an employer’s accommodation measures if it can demonstrate that there is a substantial interference of collective agreement rights.

Workers must:

  • Indicate their need for accommodation when it arises

  • cooperate and facilitate the accommodation process, including providing information that will assist in determining what accommodation is required and, if possible, identifying appropriate accommodations.

  • accept “reasonable” accommodation, even if it is not ideally what the worker wanted. If the worker refuses to accept a proposed accommodation then she or he should provide a reasonable explanation for this refusal.

However, while an employee has an obligation to cooperate, she or he is not required to accept a proposed accommodation that is unreasonable (i.e. an accommodation proposal that threatens the employee’s general health and well-being).

  1. The human rights legislation that applies to your workplace

The right to reasonable accommodation stems from the various pieces of legislation that apply to the workplace in question.

For example, PSAC members who work in the federal jurisdiction (federal public service and federally regulated employers such as crown corporations, airports, etc.) fall under the Canadian Human Rights Act. This legislation includes a specific requirement for employers to reasonably accommodate individual workers up to the point of undue hardship (section 15(2)).

Workers that are under provincial/territorial jurisdiction (e.g. universities) are covered under their provincial and territorial human rights acts or codes. These laws vary in their accommodation provisions. However, the principles of the Meiorin decision apply to all human rights legislation in Canada.

The Supreme Court of Canada has held that all human rights legislation is quasi-constitutional (i.e., nearly constitutional) because it expresses fundamental Canadian values and important public policies. Therefore, if there is a conflict between other legislation and human rights legislation, the Human Rights Act is paramount (i.e. “trumps” the ordinary legislation). In light of this, Acts, such as Workers’ Compensation Acts or the re-employment provisions of the Public Service Employment Act, which address the duty to accommodate employees with disabilities, may not go far enough to fulfill the accommodation requirements of human rights legislation. The last word is always the human rights legislation.

  1. The Canadian Charter of Rights and Freedoms

It should be noted that all human rights legislation must be consistent with the Canadian Charter of Rights and Freedoms, which is part of the Canadian Constitution (1982). Under the Charter, section 15, the equality provision, is the minimum standard for all human rights legislation in Canada.

  1. Labour legislation and case law

Labour legislation and case law in Canada provide that collective agreements must be interpreted and applied consistently with human rights laws and jurisprudence. Specific language in collective agreements may vary but, in essence, all unionized workers are protected from discrimination and harassment based on a prohibited ground under their collective agreements.

  1. Employment Equity Act (federally regulated workers only)

The Employment Equity Act states that employment equity plans must include positive policies and practices for the accommodation of those belonging to the four designated groups.

  1. Other laws

Most provincial/territorial workers’ compensation acts include provisions on modified work, return to work and the worker’s re-employment rights. Since this legislation varies from one province to another, you should check with your respective provincial/territorial Workers’ Compensation Board.

Federal public service workers have similar coverage under the Public Service Employment Regulations (PSER). The provisions found in section 7 of the Regulations establish a time-limited priority for workers who develop disabilities in order to facilitate their reintegration and return to work . The entitlement is only available to persons who are indeterminate employees when they develop a disability. The type of disability is irrelevant and it does not matter whether the disability was incurred at the work place or away from the work place, or whether the employee became disabled while on duty.

Additional coverage for federally-regulated workplaces is also found in the Canada Labour Code, Part III, Division XIII.1. It provides wage protection and return-to-work provisions for workers injured on the job.

Note that legislation comes under review regularly and, thus, may be changed.

Employers have a duty to be proactive in designing workplace policies and standards in a way that does not discriminate in the first place. But when a situation arises where a worker needs accommodation in order to perform his/her duties or participate fully in the workplace,

Workers have an obligation to advise the employer of the accommodations they may require.

The worker must show that he or she has a disability (or has a religious practice or family responsibilities, etc) that require accommodation. Without the accommodation, there are barriers for the worker who is unable to fully participate and/or to have access to benefits and opportunities that other have in the workplace. The employer is then obligated to remove the barriers through accommodation of the worker.

A BFOR is a legal term for the essential tasks required to perform a job. If an employer can establish a particular BFOR that cannot be modified/adapted for an accommodation, they may not have to accommodate a worker in that job. BFORs are not preferences; they are duties or elements that are essential to the job.

Before a Bona Fide Occupational Requirement (BFOR) defence can be established by the employer, they must show that they cannot accommodate without undue hardship.

This requirement does not have to be contained in legislation – it is a requirement in all jursdictions (federal and provincial/territorial) because of the Meiorin Supreme Court decision.

For example, while an employer may prefer workers to have a high school diploma for certain jobs or require them to lift a certain weight by hand, it is not a BFOR unless the employer can demonstrate that the job cannot be done without that qualification. Preferences such as this may have the effect of screening out certain groups of applicants or forcing existing workers out of the workplace unnecessarily.

The Meiorin decision sets out three steps that help determine whether a discriminatory standard is a BFOR:

  1. Did the employer adopt the standard for a purpose rationally connected to the performance of the job?

  2. Did the employer adopt the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose?

  3. Is the standard reasonably necessary to the accomplishment of that legitimate work-related purpose? (to show the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate without imposing undue hardship upon the employer.)

In Meiorin, the Court suggested the following as important questions to be asked in relation to Step 3:

  • Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?

  • If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?

  • Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standard reflective of group or individual differences and capabilities be established?

  • Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?

  • Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?

  • Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles?

It is important in identifying BFORs to differentiate between tasks or skills that appear to be essential, as opposed to those that are essential.

Here are some examples:

  1. A job requires that a person is able to move plywood from one area of the storeroom to another. Traditionally, this may have been done by a worker picking up the plywood and manually moving it to the new location. While it may appear that the essential task is to be able to pick up and manually move the object, the actual essential task is to move it. A scissor lift or other device could be used to allow someone to perform the essential task in question.
  2. In an office, the work might involve computer operation and, therefore, the essential task might appear to be the ability to use a keyboard. In fact, the essential task is to operate the computer and a voice recognition and response system would allow a worker without full use of his/her hands to complete this task.
  3. Workers are required to work in an older building that does not have good air circulation and ventilation. There have been problems with mold. Most workers must work in cubicles. If a worker has or develops an environmental related disability and cannot work in that workplace, then there should be a review of the workplace site to determine if changes can be made so that the worker can continue to work at the worksite (i.e. new ventilation systems; closed cubicle; no-scent policy, scent-free products are used at the workplace, etc.). After exhausting the accommodations available at the worksite, alternative worksites may need to be considered.
  4. At a workplace, workers may be required to work on a rotation shifts every two weeks because the workplace operates 24 hours a day. For some workers with family responsibilities such as childcare, rotational shift work and/or strict hours of work may not be a viable option due to the worker’s specific circumstances. Therefore, employers need to take into account flexible hours of work and the ability of workers to do shift work.
  5. Workers may be required to wear a specific uniform, which includes a specific type of head attire. However, some workers, due to their religious beliefs, may not be able to abide by the uniform (i.e. they are required to wear certain head attire which does not allow them to wear the required head attire). There are alternative ways to ensure that the uniform tradition is upheld (i.e. specialized head attire that still meets the key components of the uniform). In addition, if there is little health and safety risk to others then the degree of risk for the individual may be examined. 

Employers must reasonably accommodate workers up to the point of “undue hardship”. This principle has been largely defined through case law (decisions by various Courts and Tribunals in human rights matters) and means that there must be excessive and substantial disruption or interference with the employer’s operation before they can claim undue hardship. Undue hardship does not mean minor inconvenience or interference, or minor cost. Basically, accommodation measures must be taken unless the employer cannot do so without experiencing undue hardship.

Two major issues have been identified as important in defining undue hardship:

  • If the financial costs of the accommodation would be so high that it would alter the essential nature of the organization or significantly affect the viability of the enterprise. Note, however, that outside sources of funding will be considered in this determination.

  • If health and safety considerations are not met; in particular where the degree of risk, which remains after accommodation has been made, is so significant that it outweighs the benefits of the accommodation. Public safety and the health and safety of co-workers are considerations.. However, when safety standards are developed or applied, employers must accept that some moderate level of risk might be reasonably necessary in order to ensure the success of the accommodation.

Other related factors may be considered depending on the case law and the particular jurisdiction. It is important to be aware of the specific definition given to undue hardship in the legislation that applies to your workplace and to hold the employer to that definition, rather than allowing additional factors to be considered.

The point of undue hardship varies depending on the size of the employer’s operation, but the burden must be substantial and not trivial in order to be undue hardship.

As well, it’s important to consider who is the employer in determining undue hardship. For example, an employer may insist that the department in which the accommodation is required cannot afford the cost of the accommodation. This may be the case, but it is the employer (i.e., the whole company or organization) that is responsible and the question is whether it would be an undue hardship on this larger body. Departments in the Federal Public Service often rely on this argument, but the fact is that the Treasury Board is the employer and, as such, has broad resources to draw upon in accommodation situations.

The determination of undue hardship is a complex area and can change. It is important to become familiar with the legislation that covers your workplace and to seek assistance from your Component Office or your PSAC Regional Office, if you require assistance.

The responsibilities of the employer include:

  • to proactively “build conceptions of equality into workplace standards”;

  • to design workplace requirements and standards so that, from the outset, they do not discriminate;

  • to identify and remove any workplace discrimination and barriers found in its policies, practices, standards and procedure. Workplace standards, such as lifting requirements or work schedules that unintentionally distinguish among employees on a protected human rights ground (i.e., disability, gender, religion, etc.) may be struck down or modified.

  • to ensure that equal opportunity is provided to employees and potential employees to enjoy benefits, opportunities and privileges as all other employees;

  • to ensure that discrimination is not allowed on the part of both employer and co-workers;

  • to inform employees and applicants of their right to accommodation and its duty to accommodate policy and procedures;

  • to ensure all managers and supervisors are aware, understand and abide by their obligations to accommodate;

  • to demonstrate a willingness and commitment to accommodate;

  • to consult and seek information about their workers’ disability-related employment needs from workers, union representatives and medical and accommodation specialists;

  • to identify the need for medical information, assessment and accommodation if not possible by the worker themselves;

  • to review, follow-up and assess accommodation of workers on an on-going basis;

  • to be creative and flexible;

  • to maintain confidentiality and respect privacy and dignity of the workers who are being accommodated;

  • to address the issue with the worker and the Union;

  • to respect the collective agreement in terms of accommodation; and

  • to consult and work with the Union and the workers to eliminate discrimination and education on the duty to accommodate.

As well, employers have related responsibilities that will affect the success of accommodation initiatives, specifically:

  • the responsibility to provide a workplace free from harassment,

  • the return to work processes under labour codes, workers’ compensation, disability insurance and other related legislation; and

  • for employers falling under federal jurisdiction, the obligation to comply with the Employment Equity Act and Regulations, which includes the requirement to consult and collaborate with unions in order to achieve equality in the workplace.  

The worker requiring accommodation has the following responsibilities:

  • to identify and communicate the need for accommodation, if possible;

  • to inform the employer of any changes to the accommodation needs;

  • to collaborate with the employer and the union to find the most appropriate accommodation, if possible;

  • to communicate with the Union and the employer;

  • to offer reasonable explanation for refusal to accept the proposed accommodation, where possible. Note: the employee is not entitled to insist on their ideal or perfect accommodation; if the employer proposal is a reasonable accommodation then the employer has met its obligation; and

  • to supply job-relevant medical information (non-diagnostic information only, such as their functional limitations and capabilities),).

While the worker has a requirement to be cooperative and assist in identifying and implementing an appropriate accommodation, the final bullet above is very important. There is no legal requirement to reveal a diagnosis and, in some cases, the worker may wish to keep the diagnosis private due to current social stigmas, (i.e. substance addictions, psychiatric illness, etc.). See Q-16 on Medical Information.

The responsibilities of the union representative include:

  • to insist that the employer fulfills its duty to design workplace requirements and standards so that, from the outset, they do not discriminate;

  • to model a problem-solving approach to accommodation;

  • to represent the needs of the worker for accommodation;

  • to collaborate with the worker and the employer in accommodating the worker;

  • to respond to employer accommodation proposals;

  • to follow-up after the accommodation is implemented to assess whether it is working and to help address any associated issues that may surface; and

  • to ensure that the collective agreement does not discriminate during the collective bargaining process and during the life of the collective agreement,

 

As well, the Union may play a role in the following ways:

 

  • providing and ensuring the employer provides education about human rights issues and the duty to accommodate;

  • providing its own educational courses on human rights and duty to accommodate;

  • ensuring that training is provided to union activists who advocate for members requiring accommodation;

  • seeking to ensure that the workers’ rights (human rights) are respected;

  • seeking to ensure the health and safety of co-workers is not compromised;

  • balancing the need of the individual worker for accommodation and the interests of the bargaining unit members as a whole,

  • complying with the consultation and collaboration provisions under the Employment Equity Act; and

  • involving health and safety officials as required.

Co-workers need to understand what the duty to accommodate is and why it is valuable for the whole workplace. It is not helpful if other workers feel that a co-worker is receiving “special treatment”. The duty to accommodate must be approached in a problem-solving way , involving everyone who will be affected, at least through education. But it is important to remember that others may not be entitled to know about specific workers’ disabilities due to confidentiality and privacy issues.

As well, accommodation may involve professionals to assess the workplace, the job in question or the worker requiring accommodation.

 

  1. A work-related issue that was not identified in when the employer proactively reviewed their workplace standards is raised by a worker, the union or the employer.
  2. The employer reviews the specific issue, looking at the questions to assess a BFOR and makes the changes possible without having to only accommodate the specific worker. . For example, a uniform policy can be changed that allows appropriate modifications to the uniform for religious reasons.
  3. If the employer is not able to resolve the matter with the systemic approach above, the worker provides the employer with as much information as possible about the required accommodation or the situation, or the employer raises the issue with the worker to see what accommodation is required.
  4. The Union is advised that an individual accommodation is necessary (if the worker agrees). Note that a worker is entitled to confidentiality and privacy with respect to disability and accommodation needs. Therefore, a worker should be informed that they should involve their union for support and assistance throughout the accommodation process, but if they choose not to, the employer should not reveal confidential information to the union.
  5. The worker, employer and Union representative meet to determine how best to proceed. For example is the accommodation obvious and can be implemented right away?; is medical information or a professional assessment of necessary?; If the collective agreement is involved, the Union and the employer should examine accommodation measures that result in no or minimal negative impact on the workers while still implementing reasonable accommodation for the worker who requires accommodation).
  6. The workplace (and co-workers if necessary) are prepared in advance for the implementation of the accommodation, including co-worker education. Again, privacy of the person being accommodated must be respected and therefore the employee who needs accommodation should be consulted on how to educate co-workers.
  7. Accommodation is implemented for a trial period.
  8. Accommodation is evaluated and appropriate adjustments made.
  9. Accommodation is finalized and formalized, as necessary, including, in cases of variable disabilities, the need for ongoing modification.

A key element to ensuring the success of an accommodation is the thorough and on-going involvement of the individual being accommodated. Especially in the area of disability, there is sometimes a tendency to decide what is best for the individual worker without their involvement, when, in fact, the individual in question knows their own situation better than anyone else. It is not helpful for the employer and Union to try to accommodate a worker between the two of them. Where decisions are made without the permission or knowledge of a worker, it can result in that worker feeling excluded from a process that will affect them on a daily basis. It might also prevent other members from stepping forward for fear they will begin a process over which they have no control.

There are no set rules when assessing accommodation measures. However, the objective is to have no negative impact (or as little as possible) on the worker requiring accommodation (e.g things such as salary, classification, re-location, etc.). The following is a guideline when considering how and what can be proposed as accommodation measures:

  • Examine whether the worker can perform his or her existing job as it is (i.e. same classification, location and wages).

  • If not, then examine whether he or she can perform his or her job with modifications, physical changes or “re-bundled” duties.

  • If not, then examine if he or she can perform another job in its existing form.

  • If not, then examine whether he or she can perform another job with modifications, physical changes or “re-bundled” duties. (This may involve re-training.)

When assessing accommodation measures, the employer should examine its entire organization. For example, if no accommodation is available within the workplace location/ department, then accommodations outside of the workplace location/department should be considered.  

In many situations involving disability, the employer may request medical information to assess what suitable accommodation measures are required. In other situations, medical information is unnecessary since the accommodation may be obvious.

 

In cases where medical information is necessary to support a request for accommodation, here are some important points to remember:

 

  • Medical information that must be provided should only include what is necessary for accommodation in the workplace, i.e. the worker’s limitations and restrictions. The worker only has to disclose medical information that is relevant to the disability being accommodated and does not have to provide access to his/her entire medical file. Diagnosis is not required in virtually all cases.

  • The first (and best) source of medical information is the worker’s own treating medical practitioner, who best knows and understands the worker’s health. When the employer needs medical information in order to accommodate an employee, the employee should submit a medical certificate from his/her medical practitioner (their family doctor or specialist if necessary). An employer may request more information if there is some issue or problem with the medical information (e.g. insufficient information, contradictions in the information provided, or the need for a more specialized assessment). First, clarification should be sought from the worker’s medical practitioner. If a specialist is needed, the employee can go to a specialist of his or her choosing. In some cases, an independent medical exam may be reasonable. An independent medical exam is one where all parties agree on a medical practitioner (the employee, the employer, and the union if they are involved). An independent medical exam is not an assessment by the “company doctor” (e.g. a Health Canada assessment), unless all parties agree.

  • An employer cannot insist or automatically require that a worker go to the employer’s own medical assessor (e.g. Health Canada) for a medical assessment unless there is specific language in the relevant collective agreement. The case law is clear that an employer cannot discipline a worker who refuses to submit to an employer’s own medical assessor.

However, note that a refusal to provide medical information or to go for a medical assessment may result in some negative consequences (i.e. remaining on leave without pay, not being accommodated back into the workplace, etc.). Therefore, it’s important to speak to your union representative about your options.

Some employers have policies that outline the requirement for medical assessment processes (i.e. the Occupational Health Evaluation Standard is applicable to federal public service workers)). However, these policies must be consistent with the human rights and privacy law.

At any time during the accommodation process, a union representative can be contacted for assistance.

  • If you are denied accommodation or it is being unreasonable delayed, you may file a grievance. The grievance can be based on specific or general “No Discrimination” language in the collective agreement. A grievance can also refer to the human rights legislation that applies to your workplace.

  • At the same time, while the workers’ rights are protected by filing a grievance, it is often productive to enter into a problem-solving mode with the employee and the union. The union should attempt to initiate discussions with the employer through this more informal route.

  • It is important to note that there are time limits to file grievances so a grievance should be filed immediately when the employer has denied your accommodation. If complaints are not filed in a timely manner, there is no guarantee that the grievance will be accepted by the employer or that you will get the remedy you seek But accommodation issues are often ongoing and it’s hard to know when is the right time to file a grievance. If you are in doubt about whether you have a valid human rights grievance, or whether the grievance is timely, then you can still file it. . Speak to your union representative, who can provide advice and specific wording for a grievance.

  • A discrimination complaint may also be made to the human rights commission under the human rights legislation that applies to your workplace . Note however, that most human rights commissions will not proceed with a human rights complaint if the worker has the grievance process available to them to deal with the matter. There are also time limits to file human rights complaints. For more information, contact the human rights commission or tribunal that applies to your workplace (e.g. federally, the Canadian Human Rights Commission, or the provincial/territorial human rights commission that applies to you). .

  • Complaints may also be made under Workers’ Compensation legislation if the accommodation is related to a workplace injury. Contact your Component Office or PSAC Regional Office for assistance in determining the best route.

The dignity of risk refers to the right of an individual to assume a higher risk to themselves than might normally be considered acceptable in a workplace. This concept extends only as far as it does not cause serious risk to co-workers or the general public. As well, it must be reasonable. Thus, types of risk legally tolerated at the workplace or within society as a whole will also be considered. In some cases, higher risk might result in increased liability for the employer and, thus, higher costs. In these cases, the ability to assume risk would also be limited. For example, a person may not wear a hard hat due to religious requirements for specific head attire. The higher risk is to that specific individual and not others.

Return to work (RTW) programs are meant to help with a worker’s return to their pre-leave employment, when the worker is ready to return to work and with an appropriate transition period. Return to work programs are subject to the same general principles as for any accommodation, since a return to work program is really a specific type of accommodation program.

The mandate of return to work process should be to ensure that tasks and duties assigned in an individual Return to Work Program are meaningful and productive and have value for the worker. The Return to Work should have a rehabilitative focus. If pre-leave employment is not an option, then all of the accommodation options should be considered

Return to Work Programs should be seen as transitional and for a fixed duration. Permanent measures to support a worker who is permanently disabled are best framed as accommodation measures.

Most organizations that have benefit plans also have some form of disability insurance with a focus on rehabilitation.

Who is covered?

  • A RTW Program should include employees with permanent disabilities as well as temporary disabilities.

  • Disability insurance applies to workers who have completed six months of employment.

  • Qualifying conditions exist for workers’ compensation cases.

When does a return to work situation arise?

Typically, return to work situation arise from:

  • the return of a worker who has been receiving workers compensation;

  • the return of a worker who has been on disability insurance;

  • the return of someone who has been injured or who has become disabled, but who has not qualified for income replacement programs (workers compensation or disability insurance);

  • long term leave situations.

How does it work?

  • Return to Work Programs should lay out the steps that need to be taken to support the returning worker.

  • Return to Work discussions should ensure that the root causes of the absence from the workplace are identified and eliminated. .

  • Individual assessments are key to Return to Work Programs. These programs should not be seen as one size fits all measure but should respond to the needs of the individual’s return to work situation. In addition, work related and non work related disabilities should be treated in a similar manner.

  • Job task analysis ensures that the job duties and tasks are assessed (using job related criteria) and compared with the functional limitations of the returning worker. Typically, job task analysis will assess physical requirements of job duties (tools used, postures required, endurance...) and will involve observing workers performing job duties. In cases of psychiatric disabilities, factors such as communication, exposure to conflict, the nature of their contacts with others would also need to be assessed. The returning worker should be an active participant in the job analysis and evaluation.

  • Timeframes spelled out in the Return to Work Plan should not be arbitrary but should respect the needs of the returning worker. Having timeframes associated to key activities ensures accountability for their implementation.

  • Medical assessments should be completed by the medical practitioner who is best placed to understand the medical condition of the returning worker - her/his treating physician. Physicians may be able to provide a diagnosis and treatment - but not be able to provide a functional analysis. Additional expertise may be required. In cases where a disability insurer or workers compensation board is involved, medical information is normally provided to the insurance company or the board (not the employer), and they will normally receive more information than employers are entitled to (e.g. a diagnosis). This information must be kept confidential and detailed information should not be provided to the employer.

Return to Work Programs should be consistent with the collective agreement. On the other hand, collective agreements cannot stand in the way of the duty to accommodate

  • Early assistance can make a difference in the successful re-integration of a returning worker. As an example, some research shows that the longer a workers stays away from the workplace, the less likely they will be able to return. . At the same time, too early a return may jeopardize the rehabilitation of the returning worker or worsen the medical condition.

  • Recourse rights in return to work situations can be exercised via:

  • Disability insurance appeals (not before neutral third party);

  • Workers compensation appeals tribunals;

  • Grievances;

  • Human rights complaint.

  • The support by co-workers is critical to a successful return to work situation, particularly when the situations involve job tasks modifications or job rebundling.

Many workers who have been off work and receiving disability insurance will eventually return to the workplace in some capacity. The majority of disability insurance policies which apply to PSAC members have provisions for rehabilitation assistance. However, the basic principals of the duty to accommodate, apply in these types of situations and can facilitate a successful reintegration back into the workplace.

For further information and assistance members see “Disability Insurance” section of the PSAC website.

For more information, please contact us via email or by regular post:

PSAC Human Rights Office
Programs Section, Membership Programs Branch
233 Gilmour Street
Ottawa, Ontario K2P 0P1