How disabled do you have to be before employer has to accommodate?
QUESTION: I have developed a repetitive strain injury on one of my arms as a result of the work I do. I can go back to work but I can’t do the lifting over my head which forms about 20% of my job. Can I force the employer to allow me back to work do to the 80% of the job that I can do? Are they allowed to reduce my wages if they do this? Is the employer obliged to create a position I can do or put me into a position that someone else has which I can perform?
ANSWER: Your employer has significant economic motivation to get you back to work on a full time basis. If you are not back full time at your old wages, any loss will, for a significant period of time, be paid by WSIB. Those payments can have a dramatic effect on your employer’s premium payments to WSIB. Let’s hope that that motivation alone does the trick.
If it doesn’t, you have the Ontario Human Rights Code to rely on. Pursuant to the Code, the employer has to accommodate your limitations to the point of undue hardship. While undue hardship is not easily defined, I can say that if you are able to do the core functions of your job you have to be accommodated.
This is where things get tricky. If lifting over your head is only 20% of your job but it’s something you do every half hour to allow you to begin a task which takes up the other 80% of your time, there may be a problem. If the overhead lifting is woven into all the other tasks you perform, it will not be easily separated.
On the other hand, if the overhead lifting is something you do as a separate task all at the same time for an hour or so a day, the employer would have to accommodate. That task could simply be reassigned. It’s not like somebody would have to be running over to your work area every 20 minutes to lift something for you.
If the employer is able to separate out the tasks and it reduces your hours from 8 hours to 7 hours a day, your wage will be reduced and there is nothing you can do about it. Your employer is not a social insurance agency.
Your employer is not required to make up work that does not exist or move somebody else out of a job that you are able to do. So far as I am aware, there are no human rights decisions which would require an employer to create brand new and unneeded positions or terminate or transfer another employee to accommodate your limitations.
It is important to note, however, that if the position becomes available that you could do with your limitations and you are sitting at home waiting to return to work, your employer must offer you that position. It is not acceptable for an employer to hire a new employee to fill a position that a disabled employee could perform.