Handling Workplace Incidents Resulting in Permanent Accommodation: A Guide for Employers

Workplace incidents leading to permanent accommodations can be complex and multifaceted, involving legal obligations, medical considerations, and employee well-being. Employers have a duty to accommodate and must navigate any challenges with a thorough understanding of both federal and provincial regulations. This article provides a comprehensive guide on how employers should handle such incidents, with a focus on the nuances across different provinces, including specific policies related to permanent accommodation, re-employment obligations, and cooperation obligations.

Understanding Permanent Accommodation

Permanent accommodation refers to long-term adjustments made to an employee’s job duties or work environment due to a disability or injury. These adjustments ensure that the employee can continue to work productively without compromising their health and safety.

Step-by-Step Guide for Employers

Have a Conversation about Accommodation Needs

This starts with medical reporting. Permanent medical restrictions will need to be confirmed prior to any discussion. This information will form the basis for determining suitable accommodations that align with the employee’s capabilities and job requirements. It is also good practice to ask how the employer may best support the worker.

The discussion should be collaborative, including the healthcare provider(s), the respective provincial Board, and, if applicable, a union representative. There may be multiple conversations over a period of time.

Employers are not entitled to know the worker’s specific diagnosis or details about their treatment plan.

Assess the Accommodation Requirements

When assessing the ability to permanently accommodate, the employer should not only consider the permanent functional limitations, but the following should also be taken into account:

• the worker’s pre-injury job function, essential duties and physical demands;
• the worker’s work schedule;
• other open positions or meaningful tasks that would be suitable based on the medical restrictions, and;
• any other relevant information that is particular to the workplace.

Consider using other assessments, such as an ergonomic assessment, to determine what specifically the worker requires to enable them to work productively.

Develop and Implement the Accommodation Plan

The employer has a legal duty to accommodate the worker up to the point of undue hardship. Based on the permanent restrictions, suitable job duties and interactive dialogue, develop a customized accommodation plan. This may include modifications to work hours, duties and/or equipment.

Accommodation plans should:

• be in writing and signed by all the parties;
• identify the specific accommodation measures or solutions that have been agreed to, including details such as, timelines/dates, work schedules, duties and restrictions/limitations, etc.;
• include training on the use of any adjusted equipment or systems;
• designate who the worker should approach with concerns or questions about the accommodation plan;
• be flexible and subject to change based on the worker’s needs and updated information.

An employer has a legal duty to accommodate a worker’s needs, not the worker’s preferences. A worker must be willing to participate in the process and the accommodation plan; otherwise, the duty to accommodate may end.

Monitor and Review

Throughout the accommodation process, the goal should be to keep the worker at work (where appropriate) or to support the worker in returning to permanently accommodated duties. Check in regularly with the employee to assess the effectiveness of the accommodation and make adjustments as necessary.

Keep detailed records of all accommodations provided, changes made, and feedback received. This documentation is crucial for compliance and future reference.

Legal and Ethical Considerations

Maintain the confidentiality of the employee’s medical information and accommodation details.

Ensure compliance with the respective provincial human rights legislation, which mandates the duty to accommodate to the point of undue hardship. However, employers can only claim undue hardship based on three factors:

• Cost: The financial impact of the accommodation is so great that it would either change the essential nature of the organization’s operation, or substantially impact the employer’s financial viability.
• Health: Adjusting working conditions to accommodate a worker poses too great a risk to the health of the worker, colleagues, or the public.
• Safety: Adjusting working conditions to accommodate a worker poses too great a risk to the safety of the worker, colleagues, or to the public. The safety risk must be unmanageable within the context of the employer’s operations.

Re-Employment Obligation

Employers in most provinces have a legal duty to re-employ workers who have been injured on the job. This duty is essential to facilitate the worker’s return to the workforce.

Employers in provinces that do not have a formal re-employment obligation policy (Saskatchewan and Northwest Territories) must still accommodate under Human Rights. They must make every effort to re-employ a worker up to undue hardship.

Cooperation Obligation

In most provinces, both the employer and the employee have an obligation to cooperate in the return-to-work process. This cooperation is vital for the successful reintegration of the employee into the workplace.

Conclusion

Handling workplace incidents resulting in permanent accommodations requires a proactive, informed, and compassionate approach. By understanding the nuances across different provinces and adhering to specific policies related to permanent accommodation, re-employment obligations, and cooperation obligations, employers can effectively support their employees, ensure legal compliance, and foster a positive workplace environment. Employers should also seek continuous education on workers’ compensation policies and accommodation best practices to stay ahead in their responsibilities.

For personalized assistance and expert advice on managing workplace accommodations, consider partnering with Windley Ely, specialists in workers’ compensation and occupational health and safety.