Managing disabled employees can be a very complex, difficult and expensive process.

Potential Liability under Ontario’s Human Rights Code (the “Code”)

Discriminating against or failing to accommodate a physically or mentally disabled employee can result in significant legal liability under the Code.

Mental Disabilities

A disability includes a mental disorder. An adjudicator in one human rights case stated: “In order to meet the definition of mental disability within the meaning and protection of the Code … there needs to be a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically-significant symptoms, from a health professional in a report or other source of evidence that has specificity and substance.  That is lacking in this case.”

The Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) is the standard classification of mental disorders used by mental health professionals.

The Duty to Accommodate

Section 17 of the Code requires an employer to accommodate a disabled employee unless the employee is incapable of performing or fulfilling the essential job duties or requirements. To prove the employee is incapable the employer must prove that the needs of the employee cannot be accommodated without undue hardship.

The Ontario Human Rights Commission has published a document called, “Policy and guidelines on disability and the duty to accommodate” (the “Commission’s Disability Guidelines”). It does not have the force of law but the Ontario Human Rights Tribunal does consider this document when hearing disability cases.

The Cost of Discriminating Against a Disabled Employee under the Code

An employer can be ordered to pay damages for lost income and general damages. As far as general damages are concerned, one adjudicator has observed that: “Recent Tribunal decisions that have considered disability-related discrimination in the context of the termination of an applicant’s employment have generally made awards ranging from $10,000 to $45,000.”

For more information on the cost of terminating a disabled employee, click here.

Potential Liability under Ontario’s Workplace Safety and Insurance Act (WSIA)

Failure to permit a disabled employee to return to work following a workplace injury can result in significant liability WSIA.

An Employer’s Re-Employment Obligation under WSIA

Under the WSIA, some employers are required offer to re-employ injured workers.

This obligation applies to non-construction employers who regularly employ 20 or more workers if a worker who has been continuously employed for at least a year before the injury, and is unable to work as a result of a work-related injury.

The elements of an employer’s re-employment obligations under WSIA is as follows:

• The employer must re-employ the worker in the pre-injury job, a comparable job or a suitable job;
• If a worker can’t perform the essential duties of the pre-injury job then the employer must offer suitable work;
• The employer has a duty to modify the work or the workplace to accommodate the needs of the worker to the extent of undue hardship.

The WSIB considers the Commission’s Disability Guidelines when deciding whether an employer has complied with its re-employment obligations.

This re-employment obligation lasts until the earlier of

• the second anniversary date of the accident; or
• one year after the worker can perform the essential duties of his or her pre-injury employment; or
• the worker reaches age 65.

The Cost of Not Complying with the Re-Employment Obligations

For the first 14 days after worker can return to work, the employer is ordered to pay 50% of the cost of the workers benefits.

After 14 days, the employer can be ordered to pay 100% of wage lost benefits and 100% of WT services until the earliest of the date the employer co-operates, or wage loss benefits no longer payable, or 12 months.

If an employee is terminated within 6 months of being re-employed then the WSIB assumes the employer has not fulfilled to duty to re-employ.

If you have any questions about managing disabled employees and would like to speak with an employment lawyer, you can reach us at 1(800) 640-1728 or at [email protected].