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A Guide for Managing the Return to Work

This report is also available in .pdf format.

Table of Contents

Introduction
Part 1: Key Legal Principles
Part 2: Step-by-Step Guidelines for Managing the Return to Work
Part 3: Case Studies
Recommended Resources

Introduction

Absences due to disability or illness are among the most challenging human resource situations facing employers today. Indeed statistics show that costs generated by disability and income programs are steadily rising, as are productivity losses. The National Institute of Disability Management and Research estimates that at any given time, 8 to 12% of Canada's workforce is absent due to illness or injury.

Several factors are contributing to Canada's growing rates of prolonged employee absenteeism, including stress related to technological change and organizational restructuring, an aging workforce that is more susceptible to long-term illness, and difficulties balancing work and family responsibilities.

The Canadian Human Rights Commission (CHRC) receives many complaints based on disputes regarding the transition back to work after a prolonged employee absence. The Commission is committed to helping employers manage these cases so that the employee can return to work safely, quickly and efficiently. That's why it has developed this booklet of guidelines to support managers and supervisors in handling return-to-work situations.

Inside you will find:

• an outline of the key legal principles that apply to return-to-work situations
• step-by-step procedures to guide your approach to case management
• a series of case studies demonstrating how you could deal with different hypothetical scenarios

While these guidelines will assist you in dealing with return-to-work situations, they are NOT to be taken as legal advice for individual cases, as each case has unique circumstances. You should consult with senior managers, legal advisors, or others in your organization for advice on resolving complex return-to-work cases.

For more information, you are encouraged to refer to the additional resources listed at the end of this booklet. These resources are available online.

Key Legal Principles

The Canadian Human Rights Act (CHRA) has established several key principles that protect the rights of employees and employers and help create workplaces that are productive and respectful. In this section, we provide a brief overview of the principles that are relevant to managing an employee's return to work. By taking a proactive approach, employers can resolve unclear situations where employees need accommodation, and reduce the number of complaints that are filed.

According to the CHRA, "all individuals should have an equal opportunity to make for themselves the lives that they are able and wish to have." It also states that individuals should have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered by discrimination based on the factors or "prohibited grounds" listed below.

• Race
• National or ethnic origin
• Colour
• Religion
• Age
• Sex 
• Sexual orientation
• Marital status
• Family status
• Disability
• Criminal conviction for which a pardon has been granted

Protection against discrimination is particularly important in cases where an employee has been away and is planning a return to work. Research has shown that many of the complaints filed with the CHRC arise from these situations. In return-to-work cases, disability is the ground most likely to be at issue. Discrimination following absences due to pregnancy and maternity leave may also be grounds for complaint.

Workplace discrimination means putting an employee at a disadvantage based on prohibited grounds. Discrimination results in barriers to workplace equity because it blocks access to equal opportunities. Discrimination may happen intentionally or inadvertently--workplaces often have policies that apply to everyone, but some employees may not be able to meet certain expectations for reasons concerning a disability or other prohibited ground.

As the CHRA explains, employers need to examine how their workplace rules might affect employee rights, and then take action to prevent discrimination.

The "duty to accommodate" is a legal principle that requires employers to identify and change any rules, practices, expectations, or procedures that have or may have a discriminatory impact based on the CHRA's prohibited grounds.

An employer also has a duty to accommodate the specific needs of employees so that they can perform to the best of their potential. However, the duty to accommodate is not unlimited. An employee's right to equality must be balanced with an employer's right to run a productive workplace.

Generally, employers should look at situations involving the duty to accommodate on a case-by-case basis, since each will have unique circumstances. By incorporating good communication practices, employers can make sure that staff members have what they need to do their work to the best of their ability.

There are, however, certain circumstances under which an employer is not required to provide accommodation, as in cases of undue hardship.

The term "undue hardship" refers to the limit of an employer's capacity to accommodate without experiencing an unreasonable amount of difficulty. Employers are obligated to provide accommodation "up to the point of undue hardship." This means an employer is not expected to provide accommodation if doing so would bring about unreasonable difficulties based on health, safety, and/or financial considerations.

There is no precise legal definition of undue hardship, nor is there a standard formula for determining undue hardship. Each situation is unique and should be evaluated individually. Undue hardship usually occurs when an employer cannot sustain the economic or efficiency costs of the accommodation.

Generally, some hardship can be expected in meeting the duty to accommodate. Employers are required to carefully review all options before they decide that accommodation would cause undue hardship. It is not enough to claim undue hardship based on an assumption or an opinion. To prove undue hardship, employers have to provide evidence.

The right to privacy is another legal principle to keep in mind when organizing for an employee's absence and return to work. While in certain cases employees are required to give details on a medical condition, there are limits on what employers should request and what employees have to reveal. Medical information should only be shared, within the workplace, on a need-to-know basis and must be kept confidential.

In addition, there are restrictions on when an employer can ask an employee to take a medical exam. Please refer to Part 2 of this booklet for more information on this.