KerrLaw Logo JAMES D. L. KERR
CLIENT MEMO
TO:           Business Clients FROM:   James D.L. Kerr Lawyer
            17 – 151 Merton St.
            Toronto
, Ont., M4S 1A7
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E-mail: jkerr@kerrlaw.ca
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            Certified Specialist Civil Litigation
DATE:      January 27, 2005
RE:          TERMINATION OF AN ABSENT DISABLED EMPLOYEE

I often receive inquiries from employers who have one or more employees off on disability leave; they want to know “how long do I have to keep the job open for this employee”?

 
Obligation to Accommodate:

There is no simple answer to this question. Disabled employees are protected by the Ontario Human Rights Code (the “Code”). Under the Code, every employer has an obligation to "accommodate” a disabled employee “to the point of undue hardship". “Accommodation” includes the obligation to keep the “pre-disability job” open. Under the Code, there is no fixed rule as to how long an employee with a disability may be absent before the duty to accommodate has been met. It is a question of fact as to when keeping the job open becomes an undue hardship.

Put another way, however, the right to return to work for persons with disabilities only exists if the worker can fulfill the essential duties of the job after accommodation short of undue hardship. Other considerations that the Human Rights Commission (the “Commission”) recognizes are:

The Commission takes the position that where the employee’s prognosis continues to improve, then the duty to accommodate will continue regardless of the length of absence.

The Commission also takes the position that arbitrarily selected cutoffs or an inflexible date of return are violations of the Code.

 
Ability to Perform Essential vs. Non-Essential Tasks:

The first issue for the employer, therefore, is whether the disabled employee can, or will be able to, fulfill the essential duties of the job after accommodation short of undue hardship. The first step in the analysis is to separate the essential from the nonessential duties of the job. Where possible, non-essential tasks must be reassigned to another person. The person with the disability must then be assessed in terms of his or her ability to perform the essential duties and, on that basis, accommodation should be considered. There is little guidance as to how to distinguish between essential duties and others. The Ontario Human Rights Commission takes the position that conclusions about inability to perform essential duties should not be reached without actually testing the ability of the person. It is not enough for the employer or person to assume that the person cannot perform an essential requirement. Rather, there must be an objective determination of that fact. The duty to accommodate may require employers to consider modifying performance standards or productivity targets. The term “performance standard” refers broadly to qualitative or quantitative standards that may be imposed on some or all aspects of work, whether they are set by the employer or through collective bargaining. A productivity target is a performance standard that relates specifically to the output of work expected by the employer. Performance standards generally can be distinguished from qualification standards, which are the skills or attributes that one must have to be eligible for a particular job; put another way, production standards identify the level at which an employee must perform job functions in order to perform successfully; qualification standards, on the other hand, identify the skills and abilities necessary to perform the functions at the required level. The central issue in determining whether or how performance standards should be modified is whether the standards in question are essential duties or requirements. If the person is unable to perform the standard, but the standard is not considered an essential part of the job, it can be changed or the function removed from the employee altogether and reassigned. If the standard is essential, the employer is nevertheless required to accommodate the employee. This accommodation may include an adjustment of that performance standard so long as doing so does not result in undue hardship. In summary, if the employee is capable of performing the essential duties of the job, then the employee must be accommodated to the point of undue hardship.

 
Meaning of “Undue Hardship”:

The second part of the analysis, therefore, is whether the necessary accommodation would reach the threshold of “undue hardship”. The Code prescribes three considerations in assessing whether an accommodation would cause undue hardship. These are:

  1. cost;
  2. outside sources of funding, if any; and,
  3. health and safety requirements, if any.

No other considerations, other than those that can be brought into those three standards, can be properly considered under Ontario law. Several factors that are frequently raised by employers are therefore excluded from consideration. These factors are:

If there are demonstrable costs attributable to decreased productivity, efficiency or effectiveness, they can be taken into account in assessing undue hardship under the cost standard, providing they are:

 
Assignment to Alternate Work:

Although it has not been adjudicated and legally determined, it is the Commission’s view that accommodation in a job other than the pre-disability job may be required in some circumstances. In determining whether the situation is an appropriate one to require reassignment to alternate work, the employer is expected to consider the following:

Depending on how the above questions are answered, accommodation may include job restructuring, reassignment to open positions, retraining for alternative positions or job bundling if that would not constitute undue hardship for the employer.

 
Determining Potential Accommodation Solutions:

Both the disabled employee and the employer are obligated to cooperatively engage in the process of determining potential accommodation solutions.

The disabled employee is required to:

The employer is required to:

 
Summary:

The principles that may be distilled from the forgoing are:


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DISCLAIMER: The foregoing is not intended to be a comprehensive guide to the applicable law. General Client Memoranda and mailings from James D.L. Kerr ● Lawyer are intended to inform clients and acquaintances with respect to current issues that may be of interest to them. Memos are current to the date shown on the Memo. The law is constantly changing, however, and for that reason a Memo may not be completely accurate after it's stated date. Where circumstances warrant, the advice of a lawyer or other qualified professional should be obtained.

2005 James D.L. Kerr