The CSST and the CLP Will Examine the Duty to Accommodate

August 6th, 2015

Important changes regarding employment injuries to consider by businesses.

CLAUDIA PARENT | Quebec

Quebec’s Commission de la santé et de la sécurité du travail (CSST) as well as the Commission des lésions professionnelles (CLP) will now look more closely at the records of workers still affected by employment injuries. On June 15, 2015, a decision rendered by the Quebec Court of Appeal significantly modified the administration of such cases for both commissions mentioned hereinabove as well as for the employers. This significant decision in favour of workers was rendered in the Caron case (2015 QCCA 1048).

Consequently, the CSST and the CLP must now ensure that the employer has complied with his duty of reasonable accommodation in the context of determining suitable employment. The employer will have to demonstrate to both commissions that he has taken every possible accommodation measure. This framework goes beyond the compensation regime provided bythe Act Respecting Industrial Accidents and Occupational Diseases (AIAOD). To this date, the courts have always considered that the AIAOD presented, in itself, a sufficient accommodation duty.

The following will present the legal details of the decision.

Review of the principles

The AIAOD is based on the principle of compensation for workers who have suffered a workplace injury, regardless of any fault, and for which the employer covers all related costs. Under the AIAOD, workers benefit from employment protection during their period of disability. A worker victim of an employment injury has either one or two years to return to work. In the event that the worker is unable to return to work as a result of his injuries, he will have a priority right to equivalent employment with his employer within the same delay.

The Quebec Charter protects the disabled worker regardless of the cause of his disability, in order to allow him to reintegrate the workplace or maintain his employment relationship. The employer must assume this responsibility until the measures taken, in regards to the disabled worker, cause undue hardship.

Until now it was the AIAOD that established the rules that employers were required to follow in such cases. The CSST and the CLP did not have the authority to analyze or impose measures of accommodation to the employer. In this context, workers affected by an employment injury argued that they were placed at a disadvantage when compared to disabled workers not subject to the AIAOD who benefit from the application of accommodation principles emanating from the Charter. The Caron case has, for the moment, counterbalanced this legal disadvantage.

The Caron case facts

An educator in a reception center suffered an injury resulting in permanent disability that prevented him from carrying on with his employment. His employer assigned him to another position which was ultimately abolished. Based on the parameters of the AIAOD, the employer determined that he did not have to offer equivalent employment and, therefore, terminated the worker’s employment. The worker in question challenged the decision, alleging that the CLP must evaluate whether the employer complied with his duty of accommodation in accordance with the Charter. The CLP confirmed that it did not have the power to analyze any additional accommodation obligation other than that put forth by the AIAOD.

An appeal of the decision was brought before the Quebec Court of Appeal, which sided with the injured educator. The Court held the following:

• Case law concerningthe duty to accommodate has considerably evolved in recent years following the implementation of the AIAOD;

• the AIAOD does not impose the obligation for an employer to modify the tasks of the pre-injury job or any other available job within the company. However, following the recent teachings of the Supreme Court of Canada, the employer must alter the position or its duties in order to enable the worker to perform his work, provided that the alteration does not cause him any excessive constraints;

• the provisions of the Charter must therefore be integrated in the AIAOD;

• the CSST and the CLP must determine whether an employer is able to accommodate a worker, before or after identifying an equivalent employment, each case being unique.

Consequences for the employer

Applying these principles, the Court of Appel confirmed that the CLP must conduct an individualized assessment of the worker’s situation. This assessment goes beyond the mere application of the AIAOD’s provisions.

Therefore, the employer must demonstrate to the CSST and the CLP that he has analyzed any and all measures of accommodation and has identified a position that respects the worker’s functional limitations, unless the employer demonstrates the presence of undue hardship.

More to come

At the time of publication, no appeal request has been filed to the Supreme Court of Canada. Meanwhile, employers must carry out a much more detailed analysis of the compensation regime for a worker who has suffered an employment injury. It might be useful to obtain legal advice, especially before terminating the employment relationship upon the expiration of the employee’s entitlement to return to work provided by the AIAOD.

It should also be noted that two cases are currently before the Court of Appel regarding similar subjects in a unionized environment. These decisions will have impacts which must be taken into account, especially during collective agreement renewals.