HR Home Forums Community Do I have to accommodate this situation?

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  • Conner Lantz
    Post count: 4836

    Hello, I have an employee that had an alleged fall, at home, in side 90 calendar days which resulted in a concussion and has prevented her from working. She applied for Group Insurance but it was decldied as the incident took place prior to her being eligible for Group Insurance.
    The Company issued her a Record of Employment for medical reasons so she could apply for sick/medical benefits though Service Canada.
    She is now requesting an accommodation. Can I keep her job attached on an approved leave of absence for medcial reasons until she is cleared fit for full duties? Do I have an obligation to accommdate a non workplace illness or injury. What are my options in this situation?
    Please note that we are a Federally Regulated Employer. Thank you

    Conner Lantz
    Post count: 4836

    There’s a lot going on here so let’s take it one issue at a time:
    1, Leave of Absence: Under Sec. 239(1)(a) of Can. Labour Code, you can’t dismiss an employee on medical leave of absence IF she had 3 months’ consecutive service before the injury. So if the accident happened within the first 90 days, the leave of absence protection doesn’t apply.
    2, Accommodation of Non-Work Injury: Depends on the law involved:
    A. For purposes of the Canadian Human Rights Code, what matters isn’t whether the concussion was work-related but whether it counts as a “disability.” If so, you would have to accommodate to the point of undue hardship. Whether keeping the job open until she’s fit for duty constitutes undue hardship depends on the circumstances involved, e.g., the position, how long she’ll be out, etc.
    B. For purposes of the workers’ comp law of whichever jurisdiction you’re subject to (since there is no federal workers’ comp), return-to-work requirements kick in only for work-related injuries. In other words, since the concussion wasn’t work-related, workers comp RTW rules won’t apply.
    Summing up, you don’t have to worry about Sick Leave (assuming she didn’t have the required 90 days’ service) or workers’ comp RTW, but you may have a duty to accommodate under human rights laws to the extent the concussion injury is a disabling one. In that case, activate your normal accommodations processes. Hope that helps. Glenn.

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