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 duty to accommodate requires the employer to reinstate the worker in their company, even after the period for exercising their right to return to work has expired.
However, the employer can show that accommodation imposes undue hardship on them.
What is accommodation?
Depending on the context, accommodation can be:
- reinstatement of the worker in their job after the period for exercising their right to return to work has expired
- finding suitable employment for the worker if they are unable to return to their job
Examples of accommodation include a change in work organization or an adjustment of tasks, a change in work schedule, a relaxation in job allocation rules or the removal of a non-essential task. Accommodation must not fundamentally alter or distort the conditions of employment. For example, a worker who was employed as a maintenance mechanic in a company cannot become a maintenance worker.
If the worker has a temporary or permanent disability as a result of an employment injury and wishes to remain employed by the same company, they may invoke the duty to accommodate in order to be reinstated.
What is undue hardship?
To be considered undue hardship, the employer’s reasons may be organizational, material, financial or safety related. Undue hardship generally affects one of these aspects:
- the proper functioning of the company or organization of work
- the rights and safety of workers
- the availability of financial and material resources
Before undertaking the accommodation process, the worker must cooperate in the search for a suitable employment solution with the CNESST, their employer and, where applicable, their union.
The CNESST may request the following information:
- job titles and job descriptions
- the physical requirements
- union certifications and prerequisites, where applicable
The CNESST will decide whether suitable employment is available based on the information collected from the parties.
The CNESST may determine the suitable employment and the necessary changes if the return-to-work solution selected requires that:
- special arrangements be made to make a job suitable or available
- the changes requested meet the criteria for suitable employment
- the employer agree to organize the job in order to reinstate the worker in the same organization
If the employer disagrees
If the employer does not agree to make the necessary changes to the job selected to reinstate the worker, the CNESST may nonetheless ask them to accommodate the worker when the following conditions are met:
- the worker wishes to be accommodated and remain employed by the same organization
- the accommodation proposed by the CNESST would make the job suitable or available
- the implementation of the proposed accommodation does not impose undue hardship on the employer
If the employer considers the proposed accommodation to be a major obstacle for their company, they must explain their reasons to the CNESST by providing supporting documents such as:
- written documents detailing the versions of the facts of members of staff of the company, human resources and experts
- by-laws or standards internal to the organization, clauses in the collective agreement, etc.
- written or visual procedures and processes (e.g., photographs or illustrations)
The CNESST will examine the relevance of the information provided by the employer.
Recourses available to the employer and the worker
The worker and the employer may contest a CNESST decision.
A worker may file an application for review if they disagree with the decision rendered concerning their ability to return to their job or to hold a suitable job. They may also contest a decision to the effect that no suitable employment is available with the employer.
The CNESST’s Direction générale de la révision administrative must examine the application and render a decision. This decision may also be contested before the Tribunal administrative du travail.
An employee who is not reinstated in their job or who believes that they have been discriminated against because of their employment injury may file an occupational health and safety complaint with the CNESST or use the grievance procedure provided for in their collective agreement.