Accommodation before frustration

Addressing long-term absence from the workplace
By Michael Horvat
|employmentlawtoday.com|Last Updated: 11/15/2017

For businesses both big and small, reintegrating an employee who is recovering from an illness or injury (whether suffered at work or on their own time) can be a difficult balancing act. The employer must be flexible and patient with the recovering employee in order to determine the nature and extent of the employee’s physical restrictions; what tasks can or cannot be performed; how job tasks and duties can be modified; whether other job tasks and duties can be offered; and how long potential limited work can help the business if the situation exists long-term. In some cases, where an employee can no longer attend at work, employers also have to make the difficult determination as to whether employment has become frustrated by the employee’s limited capabilities.

It is left to the employer to balance their legal obligation to accommodate a disability to the point of undue hardship with the practical economic concern of having to run an effective business.

A recent decision of the Ontario Court of Appeal in Nason v. Thunder Bay Orthopaedic Inc. provides important guidance to employers about their duty to accommodate, as well as an important warning about the risk if an employer acts prematurely upon claiming frustration of the employment contract without receiving clear medical support.

Darren Nason had filed a claim against Thunder Bay Orthopaedic, seeking both general damages for breach of the Ontario Human Rights Code for the company’s alleged failure to accommodate his restrictions as well as damages for wrongful dismissal. While the court ultimately found that the company had met its duty to accommodate their employee to the point of undue hardship, the company was found to have prematurely claimed frustration as the basis for =Nason’s termination and he was awarded notice and severance.

Nason had been employed by Thunder Bay Orthopaedic as one of its two technicians in its small business. After working eight years as a technician, Nason began to suffer from joint and strain injuries, which were related to the repetitive performance of his duties. When his doctor advised the Workplace Safety and Insurance Board (WSIB) of his condition, the company was also notified and, upon having knowledge of his medical circumstances, the company acted promptly in its efforts to accommodate the employee so that he could continue working.

The accommodation efforts began with a review of the jobs and duties within its operation and the imposition of job modifications. This allowed Nason to continue to work full-time and perform at least some of the duties relating to his position as a technician. The company allowed the employee to work at his own pace; provided rest breaks at his discretion, including breaks to perform stretching exercises; restricted and prohibited his use of any equipment that would aggravate his medical condition; eliminated tasks and duties he could no longer perform; and provided him with paid time off to attend physiotherapy and medical appointments. In addition to the foregoing, the small company engaged other employees to assist in increasing the lost productivity that resulted from  Nason’s restrictions and curtailment of duties. This included providing substantial overtime and scheduling the other employees to work on evenings and weekends.

Despite the changes, the employer came to the conclusion that the employee’s ongoing restrictions and reduction in job duties required the hiring of another technician to do what Nason could no longer do. At that time, the company placed Nason on leave and he began to draw from WSIB benefits. Unfortunately, after several operations and a long 30-month absence from work, the company terminated Nason’s employment for frustration, providing only the statutory minimum notice.

In finding that the company had fulfilled its duty to accommodate, the court referred to the accommodation review process undertaken by the company and what had been substantively offered to the employee to meet his restrictions. The court did not negatively view the company’s decision to place the employee on leave after good faith accommodation efforts could not keep the employee in a viable position. The court also reaffirmed that the duty to accommodate did not include the creation of a new position or maintaining a position when the employee could longer fulfill basic obligations and duties, despite accommodation.

In affirming that the employer had reached the point of undue hardship with respect to its accommodation efforts for this employee, the court took into consideration the limited alternate jobs available at a small business; the nature of the work the employee was able to perform; the economic long-term viability of the duties the employee could perform; and the alternatives that were considered and tried.

However, the court did not agree that the employment contract had become frustrated, even though the employee had been on a continuous medical leave for more than two and a half years. While the WSIB had concluded that Nason’s recovery had plateaued, that he had reached maximum medical recovery and that he had become partially permanently impaired, the company nonetheless failed to conduct its own evaluation as to the prospect of  Nason’s future return to work, with or without accommodation. Significantly, the company did not explore any medical re-evaluation and made no request for medical documentation from Nadal’s treating physicians regarding their prognosis and conclusions regarding his ability to return to work in the future. Permanent restrictions did not automatically equate to permanent absence without undertaking the same substantive procedural review of accommodation based on updated medical information.

There are several important take-aways for employers from this decision.

First, employers, regardless of size, must remember that reaching the point of undue hardship will require efforts, as in this case, which satisfy the procedural and substantive requirements to engage in a process of determining what work and duties, with modification and accommodation as necessary, are available in the workplace. This takes time. Provided there are no concerns of safety, a trial period is often best. Give the employee an opportunity to perform in the accommodated position, monitor improvement and ongoing viability and, finally, document all options attempted, reviewed or considered and note reasons why such accommodation was either not offered or failed.

Second, ongoing leave does not necessarily equal frustration of contract. The provision of long-term insurance (WSIB or private insurer) means that an employer should reasonably expect that their employee may, from time to time, be absent for considerable periods. Conclusions by the WSIB or those of a private insurer on benefit entitlement do not automatically equate to evidence that the employee has no reasonable likelihood of returning to work (including accommodated work) at some time in the future. As the onus will rest with the company to prove frustration, employers should request (directly) that the employee and his/her treating physician provide regular updates as to the employee’s restrictions and prognosis for return to work. Employers must be cautious in determining that the employment contract has become frustrated, particularly where the medical evidence is equivocal, the medical recommendation is for further re-evaluation or to engage a medical specialist, or immediately following the conclusion of medical treatment where the success is yet unknown.

While the court’s decision demonstrates that it is possible for an employer to reach the point of undue hardship in an accommodation, it gives fair warning to those companies who act prematurely on frustration simply to “clear the books.”

For more information see:

  • Nason v. Thunder Bay Orthopaedic Inc., 2017 CarswellOnt 11872 (Ont. C.A.).

Michael F. Horvat is a partner with Aird & Berlis in Toronto, practicing labour and employment law. He can be reached at (416) 865-4622 or mhorvat@airdberlis.com.

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