Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2015 News | September 2015 | CSR Duty to accommodate injuries becomes more onerous in Quebec Quebec Court of Appeal changes rules for finding suitable employment for province's injured workers returning to work BY KATHERINE POIRIER ON JUNE 15, 2015, the Que- bec Court of Appeal changed the rules regarding the determi- nation, in a right-to-return-to- work situation, of a suitable em- ployment by saying the Charter of Human Rights and Freedoms applies to such cases. When a worker still has func- tional limitations following an employment injury, an evalu- ation process of the pre-injury position is performed by the Commission de la santé et de la sécurité au travail (CSST) in concert with the employer. Fol- lowing this process, if the pre- injury position is not compatible with the functional limitations, the employer could notify the CSST that the position could not be adapted and no other suitable employment was available in the employer's establishment. The employee is then taken in charge by the CSST to ensure the vocational rehabilitation of the worker in the labour market. This was done without examin- ing the accommodation efforts made by the employer. Recently, he Court of Appeal made a precedent-setting deci- sion that changed the situation. From now on, the provisions of the act respecting Industrial Accidents and Occupational Diseases, which foster the work- er's rehabilitation and his right to return to work, have to be applied in light of the charter's provisions. Indeed, reminding us that the charter goes beyond the law, the contract of employ- ment and the collective agree- ment, the Court of Appeal stated that the duty to accommodate employment injuries is now in- herent to the act. Consequently, the right to re- turn to work of an employee with functional limitations following an employment injury calls for an accommodation, just like for handicaps of a personal nature. In addition, the act provides that a worker has a right to re- turn to work for one to two years, depending on the size of the establishment. However, the Court of Appeal decided that this time limit is only a factor to consider, without being decisive. Therefore, the employer can no longer automatically close the file of an employee as soon as his right to return to work expires. The general rules of accommo- dation still apply. Consequently, the worker could successfully claim his right to return to work even after the expiration of the act delay. In other words, even though the act does not impose on the employer an obligation to find suitable employment for a worker in its establishment, nor re-hire the worker after the expiration of the right to return to work, the charter adds to the provisions of the act and impos- es these duties on the employer, to the point of undue hardship. The CSST will therefore not be able to apply the act literally, and will instead have to make sure the employer, while considering suitable employment, tries to ac- commodate the injured worker, to the point of undue hardship. Practical tips for employers Perform an analysis to identify all possible accommodations when an injured worker begins his rehabilitation — saying that no suitable employment is avail- able without actually making any efforts to find a position compat- ible with the worker's limitations will not be sufficient. Suggest to the CSST, when it is performing an analysis of the pre-injury employment, to also evaluate other available posi- tions that could be compatible with the identified functional limitations. Conserve and update, when available, an ergonomic analysis of the requirements for each po- sition, in order to be able to pro- vide alternatives or to anticipate undue hardship situations. As the expiry of the time limit for exercising the right to return to work approaches, gather all the complete updated medical information and prognosis of the injury to evaluate if this right may be exercised. In unionized environments, involve the union in the search for alternatives, since it also has a duty to collaborate with regard to accommodation. For more information see: Québec (Commission de la san- té et de la sécurité du travail c. Caron, 2015 CarswellQue 5584 (Que. C.A.). Katherine Poirier is a partner with Borden Ladner Gervais in Montreal practising labour and employment law. She can be reached at (514) 954- 3175 or kpoirier@blg.com. e employer can no longer automatically close the fi le of an employee as soon as his right to return to work expires. Credit: Halfpoint /Shutterstock

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