WSIB Return to Work is Just the Start
Most people in the construction industry are familiar with WSIB’s return to work obligations for injured workers and the special provisions for construction workers. This article is about the obligations you may not have appreciated that exist beyond those requirements.
The Ontario Human Rights Act (OHRA) prohibits differential treatment of workers who have made an application for WSIB benefits. It also requires employers to accommodate injured workers in their return to work. The employer must ask whether accommodations are required and must consider in good faith a request for accommodation. The degree of accommodation is significant – an employer does not have to create or invent a new job in order to accommodate a worker with a disability, but where an accommodation is possible it must be extended up to the point of undue hardship for the employer. Unlike the WSIB provisions, the OHRA obligation to accommodate in re-employment is not limited to a workplace injury and it is not limited to a specific period, it continues for the duration of the relationship. Failure to comply with the duty to accommodate can result in an application to the Human Rights Tribunal for an order for compensation for injury to dignity, lost wages and even re-instatement. The Tribunal routinely includes in such orders a requirement that the employer provide education on the duty to accommodate to all its employees and to publish these obligations in its employee manuals.
The Human Rights Code obligations will also be familiar to people working in the construction industry. However, it is quite possible that the obligations on employers under the Accessibility for Ontarians with Disabilities Act (OADA), 2005, S.O. 2005, c. 11 are less familiar. The Act has been phased in over time but all of the provisions referred to here have been in force since 2014. The Act and its regulation, O.Reg.191/11, requires that all employers with fifty employees or more to have in place a written return to work process for its employees who have been absent from work due to a disability and who require disability related accommodations in order to return to work and to document the process.
The OADA further requires employers with fifty or more workers to develop and have in place a written process for the development of documented individual accommodation plans for all employees with disabilities.
The OADA also has requirements for every employer to tell its employees of its policies used to support its employees with disabilities and to provide this information to new employees as soon as practicable after they start their employment. All employees must be informed whenever there is a change to existing policies on the provision of job accommodations that take into account an employee’s accessibility needs due to a disability. The regulation also requires every employer when making offers of employment to notify the successful applicant of its policies for accommodating employees with disabilities.
The OADA created the office of the director to investigate violations of the Act and to make remedial orders. It created a Tribunal which hears appeals of those orders. The Act has offence provisions for non-compliance with orders of the Director or the Tribunal with fines of up to $50,000.00 for individuals and $100,000.00 for corporations.
Each of these three Acts means employers must prepare to accommodate workers who indicate they have a disability that affects their work. Written policies and ongoing education of staff will prepare you to act when the need to accommodate presents itself and the requirements of these three Acts must be part of your HR manual.