The Interplay between Workers’ Compensation and the Duty to Accommodate
In recent years, there have been a number of decisions related to the obligations of employers in their management of employees on long term disability. Until recently, however, the interplay between the duty to accommodate and the obligations of employers under Workers’ Compensation legislation has left various boards unsure if the duty to accommodate extends beyond the employer’s legislated obligations regarding an injured worker returning to work. The Supreme Court of Canada recently addressed the issue.
Québec (Commission des normes, de l’équité, de la santé et de la sécurité de travaille) v. Caron, 2018 SCC 3
The employee, M. Alain Caron, worked as a special educator at Centre Miriam. While on the job, M. Caron injured his left elbow. The day after the injury, his employer temporarily reassigned him as the team leader for the night shift. M. Caron spent over two years helping with the required paperwork and with training and supporting new and existing personnel on the night shift. His employer ended M. Caron’s temporary assignment when the process of transferring disabled persons in its care was completed. The employer determined that M. Caron’s disability made him unable to return to his pre-injury position, and subsequently indicated that it had no suitable employment.
The Act Respecting Industrial Accidents and Occupational Diseases (the “Act”) governs workers’ compensation in the province of Québec. The Act outlines a number of benefits available to injured workers. Injured workers who are able to work within a certain period of time have the right to be reinstated to their previous position or given equivalent employment. If the injury precludes the employee from returning to their original position, they have a right to the first suitable employment with the employer. The employer determined it had no suitable employment and terminated the employment of M. Caron.
Though the Act sets up a comprehensive scheme for the treatment of workers, it does not expressly impose on employers a duty to accommodate them. The Commission des normes, de l’équité, de la santé et de la sécurité du travail(“CSST”) and, on appeal, the Commission des lésions professionnelles (“CLP”) were the administrative bodies charged with implementing the Act. The CSST ruled that since M. Caron could not return to his previous position and the employer had no suitable employment, it would help M. Caron rehabilitate and seek employment elsewhere. M. Caron appealed on the basis that his termination was premature and that the Centre Miriam had a duty to accommodate him. Both the CSST and CLP ruled that the duty to accommodate under the Québec Charter did not apply to an injured worker receiving benefits under the Act.
The issue before the Supreme Court of Canada was whether the employer’s duty to accommodate applies to workers who apply for and are granted workers’ compensation benefits. The Court ruled that all Québec legislation must be interpreted in accordance with the principles in its Charter. Since the duty to accommodate is a core principle of the Québec Charter, it follows that the duty applied to the interpretation and application of the Act.
The Court stressed that the relevant considerations in demonstrating the lack of reasonable or practical accommodations requires an individualized assessment. The Court refrained from applying the duty to accommodate analysis to M. Caron’s specific case, opting instead to remand the matter back to the CSST to reconsider in light of the duty to accommodate. Nevertheless, the Court concluded that the duty to accommodate requires that “workers who recover sufficiently that they can return to their pre-injury employment within the stipulated time, return either to that job or to an equivalent one, with the same salary and benefits they would have had if they had continued to work.” Workers that are able to carry on suitable employment are entitled to the very first suitable employment that allows them to use their remaining vocational qualifications and abilities to work.
The Effect of Caron on Workers’ Compensation
The Supreme Court of Canada’s decision affirms the paramountcy of human rights over all other legislation. The duty to accommodate supersedes any legislative requirements regarding an employee’s ability to work. It simply is not enough for employers to comply with their respective Workers’ Compensation legislation. They must first and foremost satisfy the duty to accommodate. Should a disparity exist between the duty to accommodate and the relevant Workers’ Compensation legislation, the duty to accommodate must be integrated into the interpretation and application of legislation.
Employers can no longer rely on the determination of Workers’ Compensation Tribunals that they have complied their statutory obligations to the employee to prove they have satisfied their duty to accommodate. The duty to accommodate is broader than the obligations of re-employment set out in Workers’ Compensation legislation. Employers are required to meet an overarching set of obligations in the duty to accommodate that are often more expansive than the obligations imposed by the relevant Workers’ Compensation legislation. A more robust analysis of their accommodation efforts is required.