Failure to Explore Accommodations for Employees with Disability is Costly

May 29th, 2013 by Meliha Waddell

A recent decision from the Human Rights Tribunal of Ontario (the “Tribunal”) should give employers pause when faced with an employee seeking to return to work with a disability, after being on disability leave for a period of time.

Accommodation is the keyword for employers. If an employer does not fully explore all possible reasonable accommodations for a disabled employee, it could lead to not only having to reinstate the employee, but also a monetary award for back pay and benefits for the years that their ex-employee could not find a new job.

In Fair v. Hamilton-Wentworth District School Board, Sharon Fair, a former, and perhaps soon to be again, employee of the Hamilton-Wentworth District School Board (the “Board”), was awarded over $450,000 in back pay and benefits for the 9 years that she could not find another full-time job, and the Tribunal ordered that she be reinstated to her position at the Board.

Fair was in a supervisory position for regulated substances, specifically asbestos, with the Board. Fair found the nature of her position to be too stressful and was worried that she might be held liable under the Occupational Health & Safety Act if she made a mistake with regard to the removal of asbestos.

It was determined that Fair developed a generalized anxiety disorder. She received long term disability benefits from the Ontario Teachers Insurance Plan until she was assessed as again being capable of being gainfully employed.

The Tribunal found, however, that the Board failed to investigate forms of accommodation for Fair’s disability and did not offer her available and appropriate work prior to terminating her employment.

Failure to Explore Accommodations for Employees with Disability is Costly
The Board argued that positions that were available to Fair included some aspects of liability for health and safety and that they were therefore unsuitable for Fair. The Tribunal noted, however, that Fair’s disability was related to the potential dangers of dealing with asbestos removal and these other job opportunities did not involve asbestos. The onus was on the Board to seek clarification as to what tasks Fair was capable of performing.

While the Board’s inaction was the main reason why the Tribunal decided the case in favour of Fair, it was not the only deciding factor. The Tribunal also noted that Fair had taken reasonable steps to mitigate her losses by seeking alternate employment and occasionally finding it on a casual or part-time basis.

Despite the Tribunal’s decision, Fair has yet to be reinstated and receive financial compensation as the Board is appealing the decision. The outcome of the appeal will have significant implications for employers and employees.

For further information or assistance in regards to The cost of Failure to Explore Accommodations for Employees with Disability, please contact one of our Toronto Employment Lawyers at Devry Smith Frank LLP.

We have significant experience representing both employees and employers in the areas of Wrongful Dismissal, including Employment and Executive Contracts, Non-Competition, Non-Solicitation and Confidentiality, Taxes and Retiring Allowances, and Employment Law Temporary Layoffs.

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