Duty to accommodate
When a worker who has been absent as a result of a work accident or occupational disease returns to work, the employer must make a real and reasonable effort to allow the person to return to work. This is called an obligation of reasonable accommodation.
The purpose of the obligation of accommodation is to:
- promote the worker's rapid and lasting return to work with their employer
- ensure better protection of the employment relationship
- prevent discrimination against workers
The employer’s obligations
The obligation of reasonable accommodation takes several forms, including:
- the obligation to reinstate a worker who is able to do their job, a suitable job or an equivalent job again after the period for exercising their right to return to work has expired
- the employer's obligation to cooperate in implementing rehabilitation measures in their establishment
- the employer's obligation to implement another measure to enable the worker to do a suitable job that is available in their establishment, such as adapting tasks and modifying the schedule or the organization of work, if these measures do not change the nature of the job
Determining a worker's ability to work
The employer must provide the CNESST with the information and documents required to determine the worker's ability to do their job, an equivalent job or a suitable job that is available with the employer.
This may include:
- a detailed description of the jobs available with the employer
- the physical requirements of these jobs and their availability
- the possibilities for adapting and reorganizing the work
- the provisions of the collective agreement, where applicable
The CNESST may ask the employer for access to the work stations in order to render a decision on:
- the worker's ability to hold a job with their employer
- the availability of a suitable job with the employer
If the employer does not cooperate or refuses to reinstate the worker, the CNESST may impose an administrative monetary penalty. This penalty is equivalent to the income replacement indemnity the worker may have been entitled to during the period when the employer was in default.
If the employer disagrees
The employer can show that accommodation imposes undue hardship (in French only) on them. The CNESST will examine the relevance of the information provided by the employer.
The employer may also contest a CNESST decision.