Appendix 4.N – Workplace accommodation : legal context

To know :

Workplaces’ legal obligations to accommodate at work arise from laws and group insurance contracts that have their own definitions of work disability.
The need for and manner of accommodation varies according to these definitions.
Group disability insurance plans cover non-work related injuries. Each contract is unique and specific to a workplace; the conditions for medical follow-up and RTW are specified. All these plans must respect the principles of the Canadian Human Rights Act (Canada’s legal framework), but do not have to apply the principles of the laws on work-related injuries (Quebec’s legal framework for work-related injuries).

Federal Level

The Canadian Human Rights Act has defined fundamental principles to protect the rights of workers and employers and to promote productive and respectful workplaces. Such as :

Protection against discrimination
This means that the employer must identify and modify any practice, rule or procedure that may have a discriminatory impact on workers. This protection also applies to the field of employment, including the implementation of workplace accommodations.
Duty to accomodate
- Workplace accommodation is a legal principle that requires employers to put in place measures to enable workers to overcome barriers to RT. The goal is to enable them to perform their jobs in accordance with their specific needs and thus, to reach their full potential.
- However, the duty to accommodate is not unlimited. A worker’s right to equality must be balanced with an employer’s right to operate a productive workplace. Accordingly, the employer cannot be subject to undue hardship in the face of this duty. “The term “undue hardship” refers to the limit of an employer’s capacity to accommodate without experiencing an unreasonable amount of difficulty. Employers are obligated to provide accommodation “up to the point of undue hardship.” This means an employer is not expected to provide accommodation if doing so would bring about unreasonable difficulties based on health, safety, and/or financial considerations. There is no precise legal definition of undue hardship, nor is there a standard formula for determining undue hardship. Each situation is unique and should be evaluated individually. Undue hardship usually occurs when an employer cannot sustain the economic or efficiency costs of the accommodation” (A Guide for Managing the Return to Work, Canadian Human Rights Commission, 2007, p 7).

Privacy rights
Employers must respect workers’ right to privacy and confidentiality while fulfilling the duty to accommodate during the RTW process. This duty will therefore require workers to provide certain information about their health status. However, there are limits to what they are required to disclose. Medical information is disclosed only when necessary and under specific conditions. Finally, there are restrictions on the circumstances under which an employer may require a worker to submit to a medical examination.

The Government of Canada provides a decision-making model to assist managers in fulfilling their duty to accommodate. However, decisions must be made on a case-by-case basis. For more information, click here: https://www.canada.ca/en/government/publicservice/wellness-inclusion-diversity-public-service/diversity-inclusion-public-service/working-government-canada-duty-accommodate-right-non-discrimination/duty-accommodate-general-process-managers.html
Reference : Guide : https://www.chrc-ccdp.gc.ca/sites/default/files/gmrw_ggrt_en_2.pdf

Provincial level

In the Quebec legal context, work disability resulting from a work-related injury is defined in a public administration law called the Loi sur les accidents du travail et des maladies professionnelles (LATMP). Its purpose is to “compensate for occupational injuries and their consequences for the beneficiaries” (section 1 of the LATMP). It sets out the rights and obligations of workers and employers (see Table M.1). As well as the obligations of the attending physician and other stakeholders concerned by the RTW (Table M.2). Finally, the government has entrusted the Commission des normes, de l’équité, de la santé et de la sécurité au travail (CNESST) with the administration of the LATMP.

Workplaces may have RTW policies in place. In unionized workplaces, the current collective agreement may determine how RTW will be implemented.

Note : Be careful not to confuse the rights and obligations set out in the law (LATMP) with the roles and responsibilities of RTW role players – click here. The latter take into consideration several elements specific to RTW (e.g. support to the worker, organizational expectations) as studied in research and do not derive from legal rules.

Reference : https://www.cnesst.gouv.qc.ca/en

Tableau M.1 : Rights and obligations of workers and employers in the RTW

Role players	Droits	Obligations
Workers	Income replacement indemnity equal to 90% of net income withheld if unable to return to work after the accident. Choice of attending physician. Medical assistance. RTW. This right allows the worker to retain priority of employment with his or her employer for one year from the beginning of the absence if the organization has 20 or fewer workers, or for two years if the organization has 21 or more workers. If a worker is no longer able to perform his or her job due to permanent damage, the employer must modify the worker’s duties or adjust the worker’s workstation accordingly. If this is not possible, the employer must offer the worker the first suitable job available. Rehabilitation. If necessary, and if the worker’s physical or psychological integrity remains permanently impaired, the worker is entitled to an individualized rehabilitation plan (physical, social and professional) to enable him to return to his job or, if this is impossible, to have access to another job. Compensation for bodily injury. Compensation for the worker’s spouse and, if applicable, his or her dependents if the worker dies as a result of an accident at work or an occupational disease.	Notify the employer immediately in the event of a work accident or occupational disease. Undergo the medical examination required by his employer or by the CNESST. Inform his employer of the date his injury is consolidated (healed or stabilized) given by his doctor (and the date of his RTW). Inform the CNESST of any change in his situation. Receive the care and treatment required by his condition. Participate in his individualized rehabilitation plan.
Employers	Access the CNESST file for an occupational injury suffered by a worker in his or her job. Assigning a worker who has been injured on the job to temporary duties until he or she is able to resume regular duties. Temporary assignment to light duty is an employer’s legal right. This assignment, as its name indicates, must be temporary; it must consist of a productive activity and be related to the type of activities of the organization; and it must promote the worker’s return to his regular duties (CNESST, 2015, Policy 3.06). An employer, who wishes to assign temporary work to a worker, must provide the physician with a complete description of the intended work position, the duration of the assignment, the tasks to be performed and the workload, the conditions of employment and the anticipated hours, and then have it approved by the worker’s physician (LATMP, article 179). According to the law, this work must be conducive to the rehabilitation of the individual (Loi sur les accidents de travail et les maladies professionnelles, L.R.Q. c.A-3.001). Require the worker to undergo a medical examination by a health professional of his choice.	Ensure that the injured worker receives prompt first aid required by his or her condition. Pay the worker the wages he or she would have earned on the day of the accident if the accident had not occurred. If the worker is unable to return to work, the employer must pay the worker 90% of his or her net wages for the first 14 days and claim reimbursement from the CNESST. Keep a record of accidents.

Tableau M.2 : Obligations of the treating physician and other parties involved in the RTW

Role players	Obligations
Attending physician	The Act gives priority to the opinion of the physician in charge on several matters, including: the diagnosis, the foreseeable date or period of “consolidation”, the nature, necessity, sufficiency or duration of the care or treatment administered or prescribed, the existence or percentage of permanent impairment of the worker’s physical or psychological integrity, the existence or assessment of the worker’s functional limitations, his or her conclusions on the elements stated above, subject to challenge before the Bureau d’évaluation médicale (BEM), the appropriateness of a temporary assignment, the likelihood of serious danger of undergoing an examination and an act of the worker that prevents or delays his or her recovery, the abandonment of a suitable job when the worker is no longer able to hold it for medical reasons or the certification of the danger for the worker to hold this job, the care and treatment of a rehabilitation program. The physician in charge must ensure a follow-up of the worker’s medical file, notably by completing the forms prescribed by the LATMP.
Health care providers	Health care providers offer the health care required by the worker’s condition as prescribed by the worker’s physician. Within the framework of the Règlement sur l’assistance médicale (RAM), and as prescribed by the worker’s physician, care and technical aids are provided by physiotherapists, occupational therapists, psychologists, Health care providers may also be called upon to provide rehabilitation services, depending on the worker’s needs, as defined in collaboration with the rehabilitation counsellor. In all cases, health care providers must complete reports to ensure a follow-up of the worker’s progress.
CNESST interveners	The CNESST’s workers dealing with occupational injuries are compensation officers and rehabilitation counsellors. The Board of Directors of the CNESST delegates to them the power to render decisions arising from the provisions of the Act.

Note: A recent Supreme Court of Canada decision (Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, (2018), 1 SCR 35) confirmed that the right to RTW under the LATMP must be interpreted in light of the employer’s duty to accommodate under the Canadian Human Rights Act. The employer must demonstrate that it has made a reasonable attempt to provide an accommodation solution so that the worker can remain with the company: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16959/index.do . However, the employer may be exempted from this obligation if undue hardship is demonstrated. This ruling leads all RTW stakeholders to analyze their current practices in terms of workplace accommodation.

Reference : Loi sur les accidents du travail et les maladies professionnelles, RLRQ, c. A-3.001.