Returning Employees to Work: Implementing the duty to accommodate

Returning injured or disabled employees to work requires the cooperation of employers, employees and the union. The duty to accommodate places a legal obligation on all parties to work together to identify the options available for return to work and to remove barriers to their reintegration. Our panel of experts will outline the obligations of workplace parties in the process of returning an employee to work, including obligations in relation to medical information. Topics to be discussed include:

• Employer Obligations: What obligations does an employer have to return disabled employees to work? How far does that obligation go, i.e. what will constitute undue hardship? Are there certain timelines employers must meet? Is the employer obliged to continue to try to return an employee to work even if the employee is or appears to be uncooperative? Is there a duty to treat employees fairly throughout the accommodation process and what are the consequences of a failure to fulfill this duty?
• Employee Obligations: How flexible must employees be in accepting employer offers of accommodation? Can employees insist on returning to their original job? What if the job has been filled? What are the important elements of a reasonable alternative position? The same rate of pay? Status? Core job functions? Location? Does a failure to provide information to the employer, or meet with the employer, breach the employee’s duty to participate in accommodation? Where an employee repeatedly refuses the employer’s return to work proposals, can the employer dismiss the employee? What obligation does an employee have regarding treatment and/or rehabilitation? When have adjudicators found an employee’s refusal of a proposal justified?
• Union Role: What role does the union play in the return to work process? What representation challenges are created where return to work proposals are contrary to the collective agreement and/or impact on the rights of other bargaining unit employees?
• Access to Medical Information: What type of medical information will trigger the employer’s duty to accommodate a return to work? What type of information does the employer need to create a return to work program? Should the employer be able to consult the employee’s physician directly? Under what circumstances is the employer entitled to know the nature of the illness or diagnosis and receive information about the employee’s treatment? Will the employer ever be justified in asking an employee to undergo a medical assessment by a physician chosen by the employer? What information regarding treatment and/or rehabilitation is the employer entitled to? What limits on employer access to medical information can be asserted by employees and their unions?