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  • Writer's pictureJeff Tudhope

Employer's Duty to Accommodate Clarified (a little)

What can you do if an employee is off work with an illness or disability for a long period of time and shows no sign of returning to their regular work duties in the foreseeable future? This is a question that employers struggle with and find frustrating because there is no definitive answer. As is the case with most employment matters, the appropriate course of action depends on the circumstances of each individual issue.

A recent decision of the Ontario Divisional Court, however, has provided some clarity on one aspect of this issue. The decision deals with an employee who had been off work for over 10 years and the insurer had determined that there was no reasonable expectation the employee would be able to return to regular duties. This finding led the employer to prepare to terminate the employee, and around the same time, the employee indicated their intention to return to work, but provided no information about work restrictions or work that could be performed. The employer proceeded with the termination, and the employee claimed that they had been wrongfully dismissed, claiming damages under the Human Rights Code on the basis of a failure to accommodate.

The Court’s decision, which is a benefit to employers, stated that merely communicating an intention to return to work does not trigger the employer’s obligation to find accommodated work, and that the employee must also provide evidence of the ability to return to work, including the details of the type of accommodation required. The decision also says the employer’s duty to accommodate ends where the employee is unable to fulfill the basic obligations of the employment relationship.

Takeaways for employers:

1 - When an employee’s condition is so disabling that their inability to perform any work for the employer is permanent, the employer’s duty to accommodate ends and the employment contract may be deemed frustrated. The employer can terminate the employee, but must provide the employee their entitlements under the Employment Standards Act.

2 - For an employee to be eligible for accommodated work, they must state their intention to return to work and provide the employer specifics about the sort of work that can be performed and the type of accommodations required.

There is a lot more to the duty to accommodate than what was addressed by this decision, but in what is a very complicated and varied aspect of human resources, a little clarification always helps.

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