In a previous post, the issue of a medical disability has been reviewed in the context of a human rights issue. The human rights obligation mandates the duty to accommodate the medical disability to the point of undue hardship.

The Former Approach

Many years ago the issue of a medical disability was seen purely in the lens of an argument of “frustration”, that is, whether the degree of the medical impairment permanently ended the employment relationship.

The Modern Context

That view is clearly outdated. Even if the employee cannot, for medical reasons, continue in their position on a permanent basis, the duty to accommodate will require the employer to take further affirmative steps to allow for a return to work in an alternative position adjusted to adapt to the disability, if possible.

Current Litigation

A recent decision of the Ontario Superior Court shows this obligation quite clearly.[1] The employee worked as a dealer with a casino. Due to medical issues, she was unable to continue in this position. She did work for two years in modified duties, during which period she applied for, unsuccessfully, for 16 positions, some of which she had held previously and in which she had been well regarded.

The plaintiff was successful at trial and on appeal as the employer had failed to consider these alternate positions as part of the accommodation process. It is significant to note that this case was not argued as a human rights case[2] but rather a common law wrongful dismissal case and hence the employer defence was “frustration”. The trial court used the vocabulary of “self-induced” frustration to deal with the apparent failure to accommodate the disability.

The Remedy in this Instance

The damage claim was hence based on reasonable notice requirements and set at 10 months compensation. The employer was fortunate that the case was not argued as a human rights violation as the damage claim would likely have been much severe, including the possibility of reinstatement and a lost wage claim to the date of the hearing and damages for personal humiliation and embarassment.

Employers’ Position

This issue of a medical disability is complex. Employers may face considerable liability where such an issue is not managed properly. Legal advice can allow for proper policies in place to avoid such claims, ensure a more productive workplace and also provide hands-on timely advice when needed.

A Minefield for Employees

From an employee’s perspective, a medical issue can raise issues even more complicated, including workers’ compensation, long term disability insurance, the duty to accommodate, modified return to work considerations, human rights remedies and termination of employment claims. Legal advice is clearly a critical necessity.

Contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

 

 

[1] Complex Services v Milloy Divisional Court affirming trial decision

[2] The plaintiff moved unsuccessfully at the outset of trial to amend the claim to include a human rights violation.


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