April 16, 2019
Human rights laws require employers to accommodate disabled employees to the point of undue hardship. The Workplace Safety and Insurance Act (“WSIA”) also places obligations on employers that are specific to workers who are injured in a work-related accident. The legal requirements can be difficult for employers to manage when there are numerous employees requiring accommodation and limited suitable modified duties available in the workplace.
A recent decision from the Ontario Divisional Court (the “Court”) has upheld a finding of the Human Rights Tribunal of Ontario (the “HRTO”) that employers can accommodate workers with active WSIB claims ahead of those with inactive WSIB claims and/or who have restrictions resulting from injuries not related to their work.
In Carter v. Human Rights Tribunal of Ontario, the employer was a large automotive manufacturer that had both “standard” and “non-standard” jobs available in the workplace. On any given day, there were between 50 and 100 workers seeking a standard job, and simply not enough of such jobs to go around. The employer would therefore prioritize workers with an active WSIB claim, accommodating them in the non-standard jobs before accommodating other injured or disabled workers. This was the employer’s practice due to the financial incentive created under the WSIB scheme.
The HRTO held that this practice was not discriminatory. It stated that although certain disabled workers were receiving differential treatment, this did not arise from their disabilities. Instead, the differential treatment arose from the statutory WSIB scheme and therefore did not violate human rights laws.
In reaching its decision, the HRTO provided examples of how the operation of the WSIA creates a distinction between disabled workers on the basis of whether their disability arises from a work-related injury. Relevant to this decision are the obligations regarding the return to work process. For example, workers and employers are required to co-operate in the return to work process and both parties can incur penalties for failing to do so.
Upon judicial review, the Court found the HRTO’s decision to be reasonable and that there was nothing improper in the preferential treatment of active WSIB claimants.
The decision may assist employers struggling with how to allocate limited light duties available in the workplace. It also has broad application in that it will apply to both Schedule 1 and 2 employers.
The decision also affirms, however, that employers must satisfy the procedural duty to accommodate by considering all available accommodation options. While the HRTO found that the employer could prioritize active WSIB claimants for the non-standard jobs, the employer was still required to consider whether there were non-standard jobs available for an injured employee. Because the employer had not done so, it had failed to satisfy its procedural duty to accommodate. As such, the employer was fined $5,000 in damages.
 Generally speaking, standard jobs were jobs that need to be done to produce a car. Non-standard jobs were jobs that arise temporarily or on an ad hoc basis. This could include quality control issues or special inspection jobs to correct a production issue. Non-standard jobs were mostly temporary in nature. Standard jobs were generally permanent in nature.