Michael Ford (post until Oct. 31/19)
Employment & Labour

Returning to work after illness or injury

Employees who have been off work for an extended period of time because of an injury or illness may want to discuss options with their treating physician to increase the likelihood of a successful return to work, says Ottawa employment lawyer Ella Forbes-Chilibeck.

Returning gradually or taking on modified duties "may make the difference," says Forbes-Chilibeck, the founder of Forbes-Chilibeck Employment Law

Companies are required under human rights legislation to accommodate a worker's functional limitations if they are related to disability, she tells AdvocateDaily.com

“The employer is obligated — to the point of undue hardship — to accommodate an employee in a way that allows them to meaningfully contribute to the workplace,” says Forbes-Chilibeck. “That means an employer is obligated to do more than just say, ‘We tried.’”

Undue hardship, or the point at which accommodation exceeds the means of the employer, has been defined through case law and tribunal decisions. It is generally recognized that smaller employers can’t be as accommodating as larger or public sector ones, she says.

Some employers get frustrated when an employee suffers from episodic types of illnesses, like rheumatoid arthritis, or a mental health or addiction issue, Forbes-Chilibeck says.

But they might also be guided by misinformation.

“That reticence to explore meaningful accommodations comes from a place that’s sometimes informed by the stigma attached to a particular disability a person has and may not be accurate,” says Forbes-Chilibeck.

But, she says, solutions are often found by exploring the options "and recognizing when and if conscious or unconscious bias is informing accommodation decisions." A simple checklist, for instance, might help a worker whose disability causes them to struggle with time management and multitasking.

"Although we all hear stories of the healthy worker who is trying to milk the system," says Forbes-Chilibeck, "those individuals are the exception rather than the norm. In my experience, workers often want to minimize their limitations and work beyond their ability." 

She points to concussions as an example where a worker might feel quite capable but still have considerable functional limitations. Employers can assist by providing screen covers, replacing fluorescent lights and limiting the amount of computer time for those employees with post-concussion syndrome.

“There are many accommodations that employers can enact to help people return to work and be able to meaningfully contribute to the workplace following a concussion,” she says.

Another solution Forbes-Chilibeck has seen implemented is the appointment of a work buddy who can help recognize some of their colleague's triggers and try to prevent or minimize them. For example, they could suggest a good time to take a break, pull the drapes or dim the lights.

“Some really simple things can be done that are surprisingly effective and easy,” says Forbes-Chilibeck. “People are sometimes hesitant to commit to working with someone when it’s easier to say: ‘Oh no, we just can’t do it.’

“When I see it work, it’s just amazing.”

There are several situations where the company must hold the position when the employee is on leave, including for maternity, paternity, family caregiver, critically ill child care, or a crime-related child death or disappearance.

“The Employment Standards Act restricts the employer from terminating the employee or not keeping the position available to them. It’s just not an option — the position has to be open and waiting for them,” Forbes-Chilibeck says.

When it comes to an extended period of disability leaves, an employee is entitled to return to a comparable position, not necessarily their previous one, she says.

Forbes-Chilibeck says some situations can be complicated if there’s a dispute over the disability claim. If the insurer has initially denied coverage, and the individual appeals, for example, they could be left in a state of limbo and feel compelled to return to work before they’re ready.

“During the appeal process, people are often in a kind of no man's land — they may not be certified to return to work by a doctor, but they’re not on official disability leave because the insurer hasn’t approved it,” she says.

“When they’re denied their disability benefits, they may not be really ready to go back to work but find themselves in a financial pickle — no employment income and no disability benefits either. They may go back to work early because they need the income,” says Forbes-Chilibeck.

They then run the risk of re-injuring themselves and being off work for even longer "and the financial uncertainty can exacerbate the disability," she says.

To Read More Ella Forbes-Chilibeck Posts Click Here
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