Helping employers deal with returning employees
The Ontario Human Rights Code prohibits discrimination in employment based on an employee’s disability. Not discriminating includes accommodating a return to work.
I often get calls from employers who are facing the return to work of an employee who has been away for 12, 18 or 24 months: “Everything has changed,” they say, “We have reorganized the whole office and the responsibilities of that job have been distributed among four different people,” or, “I could not get anyone to take the job on a short term basis so I had to promise them full time employment.”
The employer then proceeds to ask me if they can put the disabled employee into some other job at the same rate of pay.
Whether they like it or not, the answer is no. If the returning employee, with or without some modifications to the job, can still perform their core responsibilities, they must be returned to their pre-disability position. If people who became ill were to lose their position simply because they were away from work, they would be suffering a negative effect directly as a result of their disability. That is called discrimination. It does not matter at all that the employer is not trying to punish the disabled employee or really does want them back.
Clearly, if an employer could prove that even if the employee had never been away ill they would have had to change positions for other unrelated reasons, such as changes in the business or new technology, the employee does not have to be put in their pre-disability position. An employee should never be worse off as a result of being away from their job ill, but they should not be better off either.
The only defence that the Ontario Human Rights Code allows for employers in not returning an employee to their pre-disability position is “undue hardship”.
That concept is far too large to describe in this article but put simply, it’s extremely difficult to prove. Some lawyers would tell you that undue hardship means the employer has to prove that accommodating the employee would endanger the financial stability of the company as a whole, almost to the verge of collapse.
If an employee’s illness has left them in a situation where even with some modifications to the job they cannot perform their core duties, the employer’s obligation is to look for any other open positions that the employee might be able to fulfill. The employer has no obligation to create a job that does not exist or pay for work they do not need.
Ultimately, nobody from the Ontario Human Rights Tribunal is going to come down and make the employer put the employee back in their old job. They simply are not capable of reacting that quickly. If the employee does not accept the new position, however, and sues for wrongful dismissal and violation of their human rights, they will win. Instead of just paying a normal severance package, the employer is going to pay that plus a significant amount more. The reality is that at the end of the day it’s a lot cheaper to terminate the employee who has been filling in during the absence.
The same concepts apply to a termination. If an employee is terminated on their day of return to work from a disability leave, the onus will be on the employer to prove it had nothing to do with their illness. If the employer can show that regardless of the employee’s absence changes happened that would have resulted in their termination, they will have a good defence. You should not lose your job because you were sick and you should not be able to keep it just because you were sick either.
A question often arises as to when to tell the employee that they are out of a job. Imagine a situation where an employee has been off ill for eight months and is not returning to work in the foreseeable future. The work that they and others in their department do is contracted out and their department closed down. Do you send them a letter or call them up when they are off ill and give them the bad news or wait until they can return to work? The more advanced notice you give them the better chance they will have to find new employment by the time they are able to return to work. On the other hand, upsetting the employee can make an illness worse and delay their recovery.
My usual advice in these circumstances to employers is to delay advising the employee if they are off work as a result of mental health issues, including depression and anxiety but to let them know as soon as possible in all other circumstances.
Prompt honesty is almost always the best policy.
As published in the Hamilton Spectator, October 11, 2008