By Merrill O’Donnell – BCBT Advocate
The duty to accommodate following a worker’s injury has caused longstanding confusion in labour-management relations in B.C. It is critically important for our members, building trades officers and contractors to realize that WorkSafeBC’s plan to get injured workers back to work and contractors’ duty to accommodate are not the same things.
When injured workers are unable to perform their original tasks, problems often emerge. Unfortunately, WorkSafeBC can do little to nothing about it. This can put our injured members in a very thorny position.
Why is WorkSafeBC of limited assistance in these situations?
Under the Workers’ Compensation Act, WorkSafeBC has no jurisdiction (so no authority and therefore no power) to compel contractors to provide employment for workers who have limitations and restrictions that prevent them from performing their original jobs.
To be clear, when workers are going through the early stages of WorkSafeBC’s vocational rehabilitation process, the vocational consultant will ask contractors whether they can bring workers back into their ranks by modifying the job tasks or environment or, failing that, providing workers with new jobs in the company. Sometimes contractors say they can and all is well. But oftentimes they say they can’t. Sometimes that’s the truth. Sometimes it’s not.
How can you tell when workers have been fairly accommodated? Investigate! Investigate! Investigate! But who must investigate and upon what authority? This is where the story may get a little sweeter.
Under the B.C. Human Rights Code, contractors may be compelled to accommodate workers who have sustained a physical or mental disability. The code states: A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.
This is the foundation of duty to accommodate.
Many contractors take the position that they’ve met their duty to accommodate because they seriously tried to find their former employees a job that was within the limitations and restrictions stipulated by WorkSafeBC. But this is the wrong test!
It is possible that the employer has no viable work options available. But employers must meet their legal duty to accommodate in keeping with the Human Rights Code, and that means they must investigate all the possibilities before making decisions whether workers were injured on the job or not. Employers must meet established standards set by the courts in order to satisfy their obligations.
The Human Rights Code requires employers to accommodate people who require modifications in the way the work was historically performed. Unless accommodation causes undue hardship to the employer, failure to accommodate the special needs of a disabled person is a form of discrimination.
To determine whether the accommodation would result in undue hardship, the courts consider several factors:
- the overall cost of the accommodation
- the size and flexibility of the employer’s workforce
- the impact of the accommodation on a collective agreement
- the impact of the accommodation on the health and safety of employees
Another key issue is the bona fide occupational requirement. An employer can refuse to hire a person if the job has bona fide occupational requirements that cannot be modified to accommodate a person’s disability. For instance, if the job requires the regular use of ladders and the worker’s impairment resulted in a restriction to work on ladders, the employer may have a right to refuse to rehire the worker. However, the employer must be able to prove the requirement is reasonably necessary to perform the job, and cannot be modified without undue hardship to the employer.
Clearly, knowing your rights under the Human Rights Code is important if you can no longer perform your regular duties as a result of a workplace injury or any other cause.