Accommodations
Accommodation and Return to Work
The injured worker may incur financial hardship (due to lost wages and benefits) and it may affect their quality of life, which can cause a strain on family, friends and co-workers.
According to the Canadian Survey on Disability, in 2022 about 8 million Canadians reported that they had one or more disabilities that limited them in their daily activities. Given that there are many forms of disability—acute or chronic, physical, mental or cognitive—it’s easy to see how disability touches most people at some point in their lives.
ONA believes that every member has the right to equal opportunity and full participation in the workplace. We have developed guides and resources to support leaders as they assist members in navigating the accommodation and return-to-work (RTW) process.
Broadly, disability is defined as a physical impairment, a mental or developmental impairment, a mental disorder, and/or an injury for which a person has received Workplace Safety and Insurance Board (WSIB) benefits.
The duty to accommodate is a legal obligation under the Ontario Human Rights Code requiring employers and unions to make every reasonable effort to provide the employee with meaningful work suitable to the employee’s medical restrictions/limitations.
Each case is unique. The employer must accommodate the employee with a disability up to the point of undue hardship whether the employee is returning to work after being on sick leave, long-term disability or WSIB benefits. Duty to accommodate also includes employees who have not lost time from work.
The duty to accommodate is triggered in two ways:
The duty to accommodate applies to all employees including full-time, part-time, casual and probationary employees who are returning to work from short-term or long-term disability benefits or from WSIB benefits. The obligation is ongoing as long as there is a disability and the accommodation over time does not amount to undue hardship.
The pre-disability job is always the starting point in looking for accommodation. Employers need to engage in a four-step process based on these questions:
The employer must look at the requirements of the job and consider whether the requirement(s) can be modified or changed to allow the employee to perform the task or duty. If that is not possible, the employer must consider whether reassigning the duty causes undue hardship to the employer.
The employer has an obligation to make reasonable efforts to eliminate barriers to the employee seeking accommodation and to offer accommodation up to the point of undue hardship. Reasonable accommodation measures refer to a change to the work, work methods or the workplace to enable the employee to participate fully in the workplace.
Examples of accommodation or modified work can include:
No. One size does not fit all. Each person living with a disability must be considered, assessed and accommodated individually. A solution may meet one person’s restrictions but not necessarily another’s. However, many accommodations will benefit many people living with or without disabilities. For example, installing ceiling lifts to accommodate one person’s restrictions may prevent injuries to the staff working in the unit.
No. The duty to accommodate does not require the employer to implement the accommodation you want or the accommodation you believe to be the perfect solution. The case law has established that an employee is entitled only to reasonable and suitable accommodation, not the “ideal” or “perfect” accommodation.
If there is a choice between two accommodations that are suitable to meet the medical restrictions, and each choice provides the employee with dignity, the employer is entitled to select the one that is less expensive or that is less disruptive to the organization.
If the employer has initiated an accommodation proposal that is reasonable given the restrictions, the employee must try the proposed accommodation, including on a trial basis.
Medical restrictions are physical and/or mental tasks the employee is not capable of performing because of their medical condition. Medical restrictions can be expressed as limitations (such as no heavy lifting). A physician, nurse practitioner or other medical provider determines the medical restrictions for an employee living with a disability resulting from injury or illness.
Modified work is changes made to the job and/or to the workplace to facilitate the return to work of an employee with medical restrictions. The provision of modified work is what satisfies the employer’s duty to accommodate in accordance with the Ontario Human Rights Code.
Medical restrictions are put in place to safeguard the employee’s health and safety while at work. The employer must provide modified work that is safe and productive for an employee who is unable to perform their normal duties due to the injury/illness. The employer must provide accommodation up to the point of undue hardship.
Temporary medical restrictions are restrictions that are in effect for a specific period. These should change as an injured employee receives medical treatment and their condition improves. Permanent medical restrictions are restrictions in effect for the duration of a person’s working life or as long as the employee remains permanently disabled. The medical provider assesses these restrictions after the employee has reached maximum medical improvement. Maximum medical improvement is the point at which the medical provider believes the employee’s condition is not going to improve any further.
Undue hardship is used to assess whether an employer is required to accommodate an employee. An employer may claim undue hardship if the injured worker’s accommodation threatens the employer’s financial sustainability or poses a safety risk to others.
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