Network - Spring 2011 - (Page 15)

O Feature Accommodation: Have a Plan and Stick to It By Donna M. Seale By Donna M. Seale I n the course I teach for the Manitoba Human Rights Commission on “The Duty to Accommodate in the Workplace,” I spend a good chunk of time talking about how important it is for employers to implement a policy/ process in their workplaces establishing how they will respond to requests for accommodation by employees. In particular, I talk about how critical it is for employers to be able to demonstrate, at the end of the day, that they have thoroughly examined and considered all of the possible ways that they can provide accommodation for an employee before they even think about jumping on the ‘sorry we can’t do this’ band wagon. In addition, I stress how critical it is for employers to understand that their duty to accommodate is separate and distinct from any determinations made about the employee by a third party, such as an insurance provider. The fact is, if you do not have a process in place to reasonably assess accommodation requests, you will not successfully defend against a human rights complaint alleging a failure of the duty to accommodate. The same is true if you have a process in place and then choose, for whatever reason, not to follow it. Ditto if you choose to simply follow on the coat tails of a third party payer to decide how you should go about accommodating your employee. Unfortunately, there are still a lot of employers out there who are not getting these messages. A case in point is Jodoin v. City of Calgary, a November 2008 decision of the Human Rights Panel of Alberta. The Facts in Brief Mr. Jodoin began working for the City of Calgary in 1999. In September 2002, while he was working in the waste and recycling department as a driver/labourer, he injured his lower back. He subsequently made a successful claim for workers’ compensation benefits. From September 2002 to February 2003, Mr. Jodoin underwent a number of medical tests and was determined by his physician to be unfit for work during this time. In early February 2003, he underwent spinal decompression surgery. It wasn’t until June 2003 that Mr. Jodoin’s doctor recommended a gradual return to work. His return was not successful, though, as the job he was placed in was too strenuous. He went off work again to undergo further testing and obtain an accurate assessment of the impact of his disability. In March 2004, it was determined that Mr. Jodoin’s condition was such that he would only be able to do sedentary work in the future. One of Mr. Jodoin’s specialists sent the City a list of Mr. Jodoin’s work restrictions and asked for the City to determine whether it could accommodate him in a permanently modified or other suitable alternate position. The City began using the work restrictions identified by Mr. Jodoin’s doctor in order to attempt to find long-term accommodation for him. In the meantime, the Worker’s Compensation Board, which was also involved, determined that it was not satisfied that Mr. Jodoin could only do sedentary work and, instead, came to the conclusion that he ought to be able to perform work that simply did not require heavy lifting. As a result of the WCB re-assessment of Mr. Jodoin’s work abilities, the City changed his restrictions from sedentary to medium-type work. The City sent out some e-mails to supervisors in Mr. Jodoin’s department and to human resources and return-to-work coordinators requesting accommodation for him. No potential jobs were uncovered. WCB subsequently determined that Mr. Jodoin was not participating sufficiently in their job search program and, as a result, terminated his re-employment assistance benefits. The City then sent him a O 15 NETWORK O Spring 2011

Table of Contents for the Digital Edition of Network - Spring 2011

Network - Spring 2011
HRIA President’s Message
Legal Precedents Clarify Accommodation Procedure
Thank You!
Accommodation: Have a Plan and Stick to It
Disability Management and Duty to Accommodate: The Need for Good Documentation
Accommodating Disability, Not Bad Behaviour
Common “Mistakes” In Accommodation and How to Avoid Them
Case Studies: Managing Workplace Back and Neck Injuries
Accommodating Addictions in the Workplace
Duty to Accommodate – Employee Responsibilities
The Separation of Church and Work
When to Cut Sick Staff Off
The HR Office
Index of Advertisers

Network - Spring 2011