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STRATEGIES FOR EFFECTIVE MANAGEMENT OF RETURN TO

WORK Ryan Conlin and

Allison Taylor

Stringer LLP

Management Lawyers

110 Yonge Street, Suite 1100

Toronto, ON M5C 1T4

www.stringerllp.com

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Two types:

Employees on long-term disability or WSIB benefits for several years

Employees with large periods of sporadic absence over a long time

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Human Rights Code

(1) Definition Human Rights Code prohibits discrimination

on grounds of “disability”

Unless absenteeism relates to a “disability”, Code has no application

Code definition of disability: a) Any degree of physical disability, infirmity,

malformation or disfigurement that is caused by bodily injury, birth defect or illness…,

b) A condition of mental impairment or a development disability,

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c) A learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language;

d) A mental disorder, or

e) An injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act.

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“Normal” medical conditions (colds and flu) not considered disability

Systemic ill-health a grey area

Perception of condition as disabling may render a “disability” for purposes of Code

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Non-evident disabilities like autism, epilepsy, bipolar disorder: Dawson

Mental illness and perceived impact on performance: Wilson, Lane

Alcoholism, drug abuse – employer must be proactive in identifying (normally no accommodation when none sought by employee)

Individualized assessment: Grismer

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Past disabilities qualify for protection, past alcoholism being a common case

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Disability or Not?

In Rogers Sugar, grievor absent from work due to emotional reaction to inhumane rodent control program in workplace

Diagnosis of “active stress reaction/depression"

Medical condition not cause of inability to work

While real, in essence employee chose to leave workplace

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In Beauregard v. Canada Post, where medical issues existed because grievor “unhappy” at job he did not like and found degrading, not disability

In CUPE v. Brampton, “anxiety” respecting a workplace issue not constitute “disability”

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(2) Types of Discrimination

Directly or indirectly discriminating against employees with disabilities breaches the Code

Direct discrimination-imposing harsher standards on disabled person

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Indirect discrimination-holding disabled employees to same standards as other employees

Enforcing “standard” attendance policies is problematic

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(3) Bona Fide Occupational Requirement Employer can defend on the basis that

discriminatory rule is bona fide occupational requirement if:

1. Adopted for purpose rationally connected to performance of the job;

2. Applied in honest and good-faith belief that necessary for work-related purpose;

3. Reasonably necessary to accomplishment of purpose and not possible to accommodate without undue hardship

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In most cases rational connection and honest belief are demonstrable

Undue hardship more problematic

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Duty to Accommodate

(1) Definition In seminal case of Meiorin, the Supreme

Court of Canada held that “conceptions of equality must be built into workplace standards”

Accommodation both in process (procedural) and outcome (substantive – whether possible or not)

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Employer must review all possibilities for accommodation, including modification of duties, hours of work, alternative positions, etc. to fulfill duty

Obligations on both bargaining agent and employee to cooperate in accommodation

Employee must provide medical information and cooperate if necessary with independent medical examination

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Accommodation need not be perfect or desirable to employee – a reasonable compromise

If employee refuses to cooperate, employer relieved of further obligation to accommodate

To avoid litigation over whether there was cooperation or not, involve employee and bargaining agent from outset and work collectively on accommodation that will work

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(2) Process Create documents and procedures for recording

accommodation process, ie. for collecting medical information, gathering input from employee, management, union, re possible accommodations, analyzing and balancing options

Requests for medical information should reference duty to accommodate-recognizes obligation and justifies obtaining diagnosis, as well as restrictions, limitations and prognosis

Records must be kept of each stage of analysis Ensure all issues raised are considered

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Analysis: 1. Does employee have a disability? 2. What are employee’s restrictions or limitations? 3. What effect do they have on employee’s work

and employer’s needs? 4. How could employee’s duties be modified to

meet restrictions? 5. If more than one modification possible, what are

benefits and detriments of each to employer relative to cost, productivity, quality, health and safety etc.?

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6. If job cannot be modified, are other accommodations, including jobs, available?

7. What will be the effect of this on employer re: cost, productivity, quality, health and safety and on employee?

8. Are there too many similar accommodations?

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(3) Undue Hardship Most significant burden for the employer is proving

undue hardship In Ontario, cost, health and safety only Supreme Court of Canada- must be concrete

evidence of undue hardship Mere belief that hardship exists not sufficient-

evidence of specific problems Must be clear that issue was thoroughly explored

with all parties when accommodation was being considered and reasonably rejected: Arnone Transport v. Teamsters

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After Meiorin, cases diverged on whether absences due to disabilities must be excluded from attendance management

Supreme Court of Canada in Honda v. Keays: placing a disabled employee in an attendance management program is not discriminatory per se – a BFOR

Recognized the right to expect reasonable attendance

Accommodation of some degree of absence may be unavoidable – how much is enough?

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Frustration of Contract

Employee can be terminated based on “frustration of contract”, ie. employee’s unforeseen and permanent inability to fulfill employment contract

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For key employees such as senior management, frustration of contract may occur relatively early

Longer for easily interchangeable employees

Where LTD benefits through employer available, lengthy period of absence contemplated as part of employment contract

Accordingly, frustration of contract less likely before expiry of “own occupation” period under LTD plan (two years): Yeager, Senyk, Masonite

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Frustration of contract always subject to employer’s duty to accommodate if possible

Will not apply where employee can work with accommodation but concept still exists, despite Code: Wightman, Senyk

Works best where employee entirely absent from work and no reasonable expectation that employee will ever be able to return

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Must obtain medical evidence stating that employee will not be able to return to employment for foreseeable future in any capacity (ie. no accommodation possible)

Cannot rely on information gleaned from old medical, from employer’s insurer, from circumstances, from employee

Where disability is frustrating event, Employment Standards Act entitles employee to statutory notice and severance pay

No common law notice required

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Very hard to demonstrate frustration of contract when employee has sporadic absences

Work may not be devoid of value to employer, especially where interchangeable employees

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Some cases have held that termination for poor attendance due to disability is prima facie discriminatory and right to do so for frustration must be proven to be a BFOR: Senyk (2007) (ie. burden shifts to employer)

May need to warn of such termination first to allow employee to provide medical re: prognosis

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Employer may have to tolerate sporadic non-attendance, even when attendance has been “horrendous”

In Desormeaux, employee suffered from migraines and other conditions and had 365 days of non-attendance in 9 years, 57 due to migraines

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Canadian Human Rights Tribunal held employee was discriminated against by being terminated due to migraines

Federal Court on appeal overturned decision and held that evidence of GP re: migraines not enough to make it a disability

Federal Court of Appeal restored Tribunal decision, effectively requiring tolerance of considerable sporadic absence, despite no real evidence that overall attendance level would improve (size of employer a factor)

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But in Hydro Quebec (SCC) (2008) (960 days of absence in 7.5 years), test for undue hardship not total absence from work but whether employee unable to fulfill basic employment obligations for foreseeable future (equates to frustration)

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In some circumstances, deemed frustration of employment contracts clauses in collective agreements have been held to be discriminatory

In a number of cases, a clause which deemed frustration to occur after two years of absence was held to be discriminatory because of lack of individualized assessment of ability to return to work

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However, in McGill University, a three year clause negotiated with the union held to be a form of accommodation

Deference given to the parties’ ability to know what was made sense in their workplace

However, review of individualized assessment did occur, not just application of three year rule

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Effect of Disability Payments on Notice Period

Former approach: where employee is receiving disability payments, employee cannot seek alternative employment and therefore cannot be given actual notice, nor can employer set off disability payments against pay in lieu of notice: McKay v. Camco

However, in Sylvester, this approach overturned by SCC in favour of deductibility of post-termination disability benefits from pay in lieu of notice where employer pays for benefits

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However, where employee contributes to or pays for LTD benefits, entitled to both benefits and pay in lieu ie. no deduction for employer

A “contribution” can include employee’s ostensible “agreement” to accept a lower salary because of provision of benefit

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In Alcatel Canada Inc. v. Egan, where disability coverage cancelled, Court awarded value of notice to date of disability and disability benefits thereafter ie. to reflect what would have happened had notice been given (in effect, self-insuring)

In worst case scenario, employer could be liable for LTD benefits to age 65

Under most insurance policies, payments by employer deducted by insurer from benefits, ie. no actual double payment to employee

Burden transferred from insurer to employer

WSIB benefits deductible from notice

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Avoid potential risk of liability associated with lost disability benefits by employment contract which provides fixed termination provision and limits benefits to health and dental only after ESA notice period

Must be done with consideration, ie. before employment, when promoted, etc.

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Aggravated Damages

Wallace v. United Grain Growers: in cases of uncivil and harsh behaviour on termination, employer liable for additional notice as compensation to employee

“Wallace Damages” routinely awarded over next few years when employees terminated while ill, even if not disabled

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Some cases did not subject this notice to mitigation

In Honda v. Keays, Supreme Court of Canada abolished Wallace damages in favour of aggravated damages to compensate employee for mental distress from treatment on termination

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In Honda v. Keays case, Supreme Court of Canada approved an attendance management program

Application to Keays not discriminatory despite his disability

Employer’s request that he undergo an Independent Medical Examination was reasonable, given conflict between Keays’ conduct and his own doctor’s recommendations

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The court in Keays therefore rolled back both aggravated damages and punitive damages awards made at trial (as amended on appeal)

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Have been held to be dependent on actual evidence eg. medical attention

Are “general” damages, ie. tax-free, unlike extension on notice period

Not automatic just because employee terminated while on sick leave: Mulvihill

WSIB burning

Assets

6 years WSIB broke

Professor Harry

Author Funding

Review (Bill 135)

WSIB Funding Problems

Mandate to review income only, not benefits

Rate groups, experience rating, coverage, etc.

Phase Four September 2011 to November 2011

Review reviews consultation findings.

Phase Five January 2012

Chair of Review provides report to WSIB

Arthurs Review

Arthurs Mandate - Revenue

WSIB – Everyone Goes Back

New Return to Work

July 15, 2011, 6 new Work Reintegration operational policies

Work Reintegration Principles, Concepts and Definitions

(Policy #19-02-01)

Responsibilities of the Workplace Parties in Work Reintegration

(Policy #19-02-02)

Determining Suitable Occupation (Policy #19-03-03)

Work Transition Plans (Policy #19-03-05)

Work Transition Expenses (Policy #19-03-06)

Relocation Services (Policy #19-03-11)

Work Reintegration Policies

(see resources on USB stick)

Can Policy Trump Statute

Fit for essential duties

Da

te o

f In

jury

2 years

Begins Ends

Re-employment – All Workers

Earliest of…

Worker reaches age 65 Or…

Or… Worker declines offer of work

1 y

ear

Fit for suitable work

Em

plo

yer

rece

ives n

oti

ce

‘Suitable Work’

Worker fit for suitable work

Employer offers suitable work

Worker returns to work

Work that is safe - should not;

• cause re-injury or new injury

• endanger other workers

• cause travel (mobility)hazards

Employer offers suitable work

Worker claims work is NOT suitable

• Contacts WSIB

WSIB determines work offered IS suitable

Worker rejects WSIB decision

• does not return to work

• launches appeal Note: Employer obligation resumes

if WSIB decision overturned

ESRTW Key Concept S(40)

Return to work as a process

Starts the moment the employer learns that a worker has suffered a work-related injury/disease

Continues throughout the work-related injury/disease recovery and impairment period, and

Adapts to changes as they arise

Available Work S40(1)(b)

Work that exists with the accident employer

at the pre-injury worksite, or at a comparable worksite, arranged by the employer

Do not have to create a job

Specific criteria defines a comparable worksite

Safe Work

Work that doesn’t pose an increased health or safety risk to the worker (e.g.,should not cause re-injury or a new injury) or to co-workers

Worker has the functional ability to travel safely to and from the proposed worksite

Productive Work

Tasks provide an objective benefit to the employer’s business

Employer must connect work as an objective benefit to product / service

Objective benefit includes work that:

Forms part of the employer’s regular business operation

Permits worker to acquire new job skills

Generates revenue (aside from reducing WSIB costs), and/or

Increase business efficiency or lead to business improvements

Employers will need to consider how components of modified work objectively benefits their business

Required Communications Worker

Contact the employer as soon as possible after the work-related injury

Contact the employer as soon as possible after receiving initial health care treatment

Respond to written or telephone contacts from the employer “within a reasonable time”

Be available to communicate with the employer during regular work hours

Attend appointments/meetings with the employer

Employer

Contact the worker as soon as possible after the work-related injury

Provide the worker/WSIB with the company return to work contact(s),

direct supervisor, company nurse

Respond to written or telephone contacts from the worker “within a reasonable time”

Be available to communicate with the worker during regular work hours

Attend appointments/meetings with the worker

WSIB WR Work Reintegration 19-02-01

Policy recognizes employers combine tasks

“work” includes combining tasks/duties which together constitute a temporary or permanent job, as well as a short-term training program which leads to a job with the accident employer

Non Co-operation Penalty Process

Where WSIB considering making a finding of non-co-operation, WSIB first orally warns the workplace party:

Why the decision-maker is considering making a finding of non-co-operation

What behaviors and activities require change on the part of the workplace party

The likely consequences if the workplace party doesn’t change the behaviours/activities, and

Any legitimate reasons the workplace party may have for not co-operating in the return to work process.

WSIB confirms outcome of discussion in writing

Legitimate Employer

Non Co-operation The terms of a collective agreement

Summer or holiday shutdowns

General layoffs, strikes or lock outs

Corporate reorganization

Financial hardship

WR Summary of Penalties Penalty starts 7

days after date on written notice

Initial Penalty

First 14 Days of Breach

Ongoing Penalty

15 th Day + of Breach

Worker 50% LOE 100% LOE

Employer

50% LOE

100% LOE +

100% LMR Costs

Up to 12 Months

Concurrent Obligations

Construction employers have both RTW and Re-employment obligations: Obligation to co-operate in RTW begins once the

work- related injury/disease has occurred

Re-employment obligation begins once a worker is medically fit to do the essential duties of the pre-injury job or suitable work

If employer breaches both obligations, and the breaches are for different acts or omissions, the WSIB may levy both penalties

Forum Shopping

Increasingly common for workers who do not like decisions of the WSIB on work suitability to challenge the findings of the WSIB in other forums

In recent months we have seen workers file human rights applications, engage in work refusals under the OHSA and pursue grievances under collective agreements

Forum Shopping

A recent decision of the Supreme Court of Canada appears to suggest that workers should pursue their disputes through the WSIB appeal process (British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52)

There are no cases to date which have addressed “forum shopping” with respect to work suitability

WSIB Return to Work Meetings

Attended by the workplace parties and a WSIB “Return to Work” Specialist

“Return to Work” Specialist makes recommendations to the Case Manager on suitability of work

The Case Manager usually follows the recommendations of the Return to Work Specialist

WSIB Return to Work Meetings

Workers are increasingly bringing union representation to Return to Work Meetings

Recommendations of the Return to Work Specialist are difficult to get overturned

It is highly recommended that employers have representation at Return to Work meetings

Employers need to be fully prepared for the meeting

WSIB Return to Work

Meetings Ensure that a Return to Work Plan is signed by

all parties at the meeting

Ensure that the employer has a list of available jobs, PDAs and job descriptions

Employer should make it clear that it expects the worker to comply with the plan and must be prepared to honour any commitments made to the worker

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Scenario

A municipal employee is performing modified duties that the WSIB has ruled are suitable. The employee claims that he is now unable to perform these duties and refuses to attend at the workplace.

The WSIB once again rules that duties are suitable and refuses to pay any benefits. The municipality fires the employee for job abandonment.

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Scenario

The employee appeals the WSIB’s decision and brings a human rights application against the municipality for discrimination on the basis of disability.

Can the municipality rely on the WSIB’s decision as defense in the human rights case? Does it matter whether the employee wins the WSIB appeal?

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TOP 10 CLAIMS

MANAGEMENT MISTAKES #1- Taking Legal Advice from the WSIB Case

Manager

#2- Forgetting the WSIB Appeals process and reconsideration power

#3- Failing to keep in regular contact with the worker and the Case Manager

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TOP 10 CLAIMS

MANAGEMENT MISTAKES #4- Failing to appeal questionable WSIB

decisions

#5-Failing to proactively address the reality that the WSIB appeals process can take many years

#6- Putting too much emphasis on the value of “gotcha” surveillance

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TOP 10 CLAIMS

MANAGEMENT MISTAKES #7- Failing to follow-up with letters on every call from a

Case Manager

#8-Failing to document all interaction with the worker

#9-Allowing fear of litigation to prevent any termination of an employee with a disability or claim

#10- Failing to consider experience rating consequences of employment decisions

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Conclusion Many employers are afraid to take any steps Employees may stay in limbo for years To avoid this, take some action to move the case

along, ie. seek medical information, push for return to work with accommodation, explore voluntary departure, etc.

No completely safe route Always get legal advice before commencing this

process Wait until the probability of return or significant

improvement in the situation relatively clear before initiating termination

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Conclusion Duty to accommodate includes procedural (process

of considering accommodation) and substantive (accommodate or reasons for lack thereof) aspects of duty to accommodate

Only if return to work with or without accommodation clearly not possible within a reasonable time, employer can trigger frustration of contract

Frustration of contract a unilateral act (no release) Where any question as to sufficiency of time to

trigger frustration of contract, a severance package can be offered or “option” of termination offered

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Conclusion

For either type of long-term disability (total absence or sporadic absence), employer’s rights dependent on right kind of medical information, and upon having discharged, procedurally and substantively, duty of accommodation