More Onerous Duty to Accommodate Workplace Injuries

A recent Quebec Court of Appeal decision will make it more onerous for employers to meet their duty to accommodate in the context of a workplace injury. The Court of Appeal found that an employer must seek suitable employment for an employee returning to work from an injury, offer reasonable accommodation to the employee to the point of undue hardship, and conduct an assessment to ensure the accommodation complies with the provisions of the Quebec Charter of Human Rights and Freedoms.

In short, where an employee injury qualifies as a disability, the employer’s efforts to return the employee to work under the Act respecting industrial accidents and occupational diseases are not sufficient to satisfy the employer’s obligation to accommodate a disability under the Charter.

Quebec Superior Court decision

Alain Caron was employed as a teacher at the Miriam Centre, a home for persons with intellectual disabilities. On October 20, 2004, while performing his duties, Caron developed epicondylitis (tennis elbow), which required surgical intervention. Following the injury, the Commission de la santé et de la sécurité du travail (CSST) recognized that the injury was an accident that occurred in the course of employment within the meaning of the Act respecting industrial accidents and occupational diseases (AIAOD). Caron was assigned a temporary position as team leader on the night shift.

In March 2007, the CSST began a rehabilitation process to assess Caron’s continued employment with the Miriam Centre, despite his functional limitations confirmed by the Bureau d’évaluation médicale. The employer confirmed its interest in maintaining Caron’s employment permanently in his temporary assignment. However, that temporary assignment ended up being abolished later that year. The employer informed the CSST that it could not offer Caron another suitable or available position at its establishment.

Caron’s union objected to the employer’s decision not to find another suitable position for Caron and filed the objection with the Commission des lésions professionnelles (CLP). The union argued that Caron’s injury amounted to a disability protected from discrimination under section 10 of the Charter and the employer failed in its duty to accommodate Caron to the point of undue hardship by not enabling his return to work in a suitable position.

The Miriam Centre argued that the only standard of review in this case is that of reasonableness and the CLP already decided that Caron was unable to perform his pre-injury job. Since the employer had no other suitable job and terminated Caron’s employment, it was too late for Caron to be reinstated and the CLP had no power to reinstate Caron.

The CLP rejected the union’s arguments. The union applied for judicial review of the decision to the Superior Court of Quebec. The question to be decided was whether the administrative decision of the CLP was consistent with the duty to accommodate a disability under the Charter and subject to the reasonableness standard: did the CLP’s decision balance the right protected by the Charter and the objectives sought under the AIAOD?

Superior Court reverses CLP ruling

The Superior Court ruled that the CLP decision was unreasonable because it was not the result of a proportionate balancing of Caron’s fundamental right protected by the Charter with the objectives of the AIAOD. The employer had a duty to reasonably accommodate Caron based on Charter protection and rights, even if the employer contributed to a comprehensive regime for rehabilitating Caron under the AIAOD, and the CLP had neglected to compel the employer to meet this obligation.

The judge added that the CLP made an unreasonable decision by expressing the opinion that there is no legal basis in the AIAOD to require the employer to modify an existing job to make it suitable for the purposes of Article 239 of the AIAOD.

The CLP was to apply the Charter reasonably and follow the approach imposed by the courts to determine whether the employer had discriminated against the employee based on disability and breached his right to return to work in a suitable position due to a violation of the Charter.

The Commission des lésions professionnelles appealed the Superior Court of Quebec decision to the Court of Appeal.

Court of Appeal decision

The decision of the Court of Appeal implies that a rehabilitation measure provided under the AIAOD does not constitute, in itself, a reasonable accommodation. It is just not good enough.

The Court agreed that the AIAOD does not impose an obligation on the employer to modify the tasks of the pre-injury job or any other job available in the workplace. However, as outlined by the Supreme Court of Canada, the fact remains that the employer has “an obligation to adjust , if it does not cause an undue hardship, the workplace or the employee’s duties to allow him or her to perform his or her job.” This obligation stems from the Charter and adds to the AIAOD, because the legislature did not provide otherwise.

Although the AIAOD does not impose any obligation on the employer to find suitable employment for the worker with a disability as a result of an employment injury, an employee may still be entitled to an accommodation pursuant to the Charter. The supremacy of the Charter (which supersedes the AIAOD) means that the employer is subject to the duty to accommodate under the Charter when dealing with a workplace injury and the CSST must check whether the employer has completed this exercise.

Moreover, the Court of Appeal held that the quasi-constitutional right to accommodation in the workplace, pertaining to an enumerated ground of discrimination under section 10 of the Charter, such as a disability, constitutes a preeminent standard that transcends the law, employment contracts and collective agreements. In other words, the right of an employee to return to work, if he or she remains disabled after a workplace injury, requires that the employer accommodate the employee’s special needs up to the point of undue hardship.