Duty to provide a safe work environment versus duty to accommodate

What is our duty to accommodate a worker whose condition is deteriorating to the point where safety is a concern?

Colin Gibson
Question: One of our unionized employees has suffered several injuries in a series of workplace accidents over the last 10 years. We have accommodated the resulting restrictions in his ability by assigning him modified duties, but he seems to be deteriorating further, both physically and mentally. Our work environment involves highly flammable chemicals, and we are concerned that this employee may injure himself or others. What should we be doing to protect him, others and our business?

Answer: An employer’s duty to provide a safe workplace arises from several sources. At common law, employers have a duty to take reasonable care to make their workplaces as safe as possible. This duty is reinforced by statute. Provincial and federal workers’ compensation statutes, as well as occupational health and safety legislation and regulations, impose duties on employers to protect the health and safety of workers.

In addition, s. 217.1 of the Criminal Code imposes a legal duty on those who direct workers, or have the authority to direct workers, “to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.” Breach of this duty can result in criminal sanctions.

An employer’s duty to provide a safe working environment includes the proper management of employees who may be physically or mentally unable to work safely. However, such circumstances may also trigger the employer’s duty to accommodate. Under human rights legislation, employers must refrain from discriminating against employees on the basis of mental or physical disabilities and are obliged to accommodate such employees up to the point of undue hardship. An employer must tolerate some hardship in the accommodation process; only “undue” hardship is beyond the scope of the employer’s duty.

The duty to accommodate is shared between the employer, the disabled employee and the union. Collective agreements often impose additional procedural or substantive duties on the parties in this respect. Accordingly, it is essential to consult the collective agreement and involve the union from the outset of the accommodation process.

The accommodation process requires the parties to collectively seek out reasonable measures to accommodate the specific capabilities of the disabled employee. By necessity, the first step in this process is to obtain current information concerning the employee’s medical restrictions, prognosis for recovery and ability to perform duties of value to the employer. In this respect, an employer who relies on outdated and potentially inaccurate medical information may find it has breached its duty to accommodate a disabled employee.

If current medical information indicates the employee is unable to work safely in her current position, the employer is permitted to remove the employee from that position. However, that does not end the matter. The employer must search for alternative positions that are within the employee’s capabilities, with or without modifications. In some cases the employer may even be required to bundle together available tasks from different positions in order to create a position which the disabled employee is able to perform and which continues to provide economic value to the employer.

The impact on the safety of the individual, other employees or the general public are legitimate considerations in determining whether a particular accommodation would impose an undue hardship. An employer is not required to place an employee in a job she cannot perform safely and productively.

If an employer determines it cannot accommodate a disabled employee without incurring undue hardship, the employer may consider placing the employee on sickness or disability leave or move towards non-culpable dismissal. Legal advice should be obtained before pursuing these options.

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.

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