Human Resources, Human Risks Human Resources, Human Risks

• First, the employee may face personal debilitation which can have effects reaching far beyond limiting his or her ability to perform at work.
• Second, the resulting loss of productivity erodes the employer’s overall performance.
• Third, the cost of recruiting and training replacement staff can be onerous.
• Fourth, accommodating the disabled employee may mean staff transfers, duty changes, new tools and devices, or simply accepting reduced productivity for a prolonged period of time.
• Fifth, the slightest mis-step in case management can lead to complaints that the employer has discriminated against the person contrary to human rights legislation, or at minimum failed to meet the re-employment obligations in workers’ compensation legislation.
• Sixth, claims – whether through private disability carriers or workers’ compensation agencies – are a significant business cost.
• Finally, work-related health problems may trigger health and safety investigations or, at the very least, trouble and demoralize other workers.

Traditionally, employers took a more aggressive approach to re-employing persons with work injuries (in order to reduce workers’ compensation costs), but today more and more insurance companies are also engaging “return to work managers” to try and encourage employees with non-work related illnesses to get back to work. HR managers today know that is a dangerous practice to ignore a request to come back to work, because the employee has a powerful card to play: the allegation that the employer has failed to accommodate a disability, contrary to human rights laws.

Canadian and U.S. legislation on the topic mandates that a person suffering from a disability should not suffer any loss of opportunity due to the fact of his disability. But what is a disability? Human rights laws across Canada generally define a “disability” as a loss of physical or psychological function, or a chronic debilitating condition, but it also includes an addiction to alcohol or a drug.

An employer must not discriminate, or be perceived to discriminate, against a person due to her disability. This means that if a disability leads to the denial of work, pay or opportunity to the person, that person has suffered discrimination unless the employer has demonstrated an attempt, to the point of “undue hardship” to accommodate that person’s needs so she can work. In practical effect, this means that an employer – any employer, regardless of size and regardless of the origins of the employee’s health problem – must take action to protect itself against an accusation of discrimination contrary to the law.

Canadian and American human rights laws say that an employer can refuse to employ someone due to disability, if the disability prohibits the person from performing the essential requirements of the job – but that it cannot be said that a person is so limited until after attempting to accommodate them. The courts have given broad interpretation to the employer’s duty and capacity to accommodate, particularly since the 1999 decision of the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (usually described as “the Meiorin decision). In that and many cases since, courts and arbitrators have held that it must be virtually impossible to productively accommodate a worker before it can be said that she is incapable of fulfilling the essential requirements of a job.

This means that the law requires employers to change how work is done, including the duties, tools, environment and demands, so as to enable the employee to achieve the intended results of the work. Unless it is “impossible” to make that happen, the employer will be expected to invest whatever effort and cost is necessary to enable the employee to get those results. What is most important is that the results be achieved, rather than the traditional means be used to get the work done.

The challenge of accommodation today weighs equally upon all employers, large or small, public or private, booming or struggling, non-union or unionized. What this means is that every employer must confront and manage the accommodation duty, and do so in all cases, whether the worker suffers from a personal illness or a work-related injury.

But how do organizations manage these issues in a coherent way? First, they must adopt certain principles in addressing cases of employee injury. These are certain values and objectives which should be included in such a policy statement:

• Senior management is fully committed to the productive accommodation of employees in every possible instance;
• Failing to accommodate the disabled worker is against the law, and that is not something the organization will tolerate;
• Risks to employee health will not be tolerated;
• Unjustifiable absence or reduced productivity will not be tolerated either;
• The longer a person is absent, the greater and more severe the cost and impact upon the employee and the organization. The earliest productive and useful return is almost always the best option, even if the person remains considerably limited by the injury or illness;
• The organization’s duty is to enable the person to contribute and produce;
• Employees are expected to use those means to contribute and produce, according to their capacity and the organization’s ability to accommodate them;
• Accommodation often means change –co-workers, supervisors and the worker herself must alter how work gets done, in order to enable the accommodated person to contribute. No-one is exempt from this obligation and everyone can benefit from it;
• The employee will have valuable information to share about his or her health, to assist the employer in accommodating that employee, and should share it. But the employee is not always the best judge of his/her medical ability to work;
• Physicians and others examining or treating the employee have a duty to deliver timely, accurate information and should not assume the role of “employee advocate;”
• A note which says a person “can’t work” is not a medical opinion, but an insurance decision. Physicians and other practitioners are expected to provide working restrictions, not restrictions on working;
• The insurer often has considerable expertise available to assist with return-to-work, resources which must be utilized to the greatest possible effect;
• The organization must offer, and must deliver, genuine accommodation assistance to each person who needs it, unless productive accommodation is impossible without jeopardizing the health and safety of the worker or others, or would impose such cost as to make the work itself unprofitable;
• Therefore the organization must commit the resources – financial and human – necessary to the task of accommodation, or else it will fail;
• Managers have to communicate and “sell” return-to-work and accommodation principles to all concerned – particularly frontline supervisors and co-workers who may resist.

One of the most basic and serious problems in disability case management is the tendency of line managers to ignore or over-rule the advice and prescriptions offered by HR and occupational health advisors, in particular with respect to accommodations. This practice inevitably leads to breakdowns in the accommodation system, which in turn lead to cases where a person is denied accommodated work that might have resolved not only the insurance claim concern, but also the human rights concern. We cannot emphasize enough the importance of senior management commitment to accommodation, so that lower levels of management understand that it is a genuine occupational imperative. That message must be conveyed to the whole organization, and if possible, HR practitioners must be empowered to give key accommodation advice to the front line.

What organizations will gain from this is a consistent, coherent approach to the handling of all employee disability cases. Each case will be evaluated, each person will be contacted frequently, each will be invited to participate and each will be accommodated to the degree possible to enable them to productively contribute. The risks and benefits associated with each case will be taken through a consistent, logical analysis by individuals who are better and equipped trained to do the task.

Ultimately, such an approach can achieve important goals for the organization: demonstrate a good faith accommodation effort, encourage return-to-work, improve employee health through productive activity, reduce claim costs, reduce recruitment and training costs all while focusing the employer’s investment in a single, more efficient and more expert case management resource and system. It will also improve compliance with the law, and most important, show respect for the needs and dignity of people who genuinely need accommodation.

David Law is a partner in the Ottawa-based law firm of Emond Harnden LLP, a national leader in offering advice and representation to employers across Canada with respect to labour, employment, human rights, workers’ compensation and occupational safety matters. Mr. Law is a former workers’ compensation policy adviser in Ontario, Nova Scotia and British Columbia and heard workers’ compensation appeals in Ontario for over five years. He is also the Chair of Federal Government Affairs for the Canadian Council of Human Resource Associations.