Return to Work Issues: Workers’ Comp vs Human Rights

The human rights statute and the workers’ compensation process may each apply concurrently to such an issue as a return to work following a workplace injury. The choice of jurisdiction must be determined. If the issue lies within the jurisdiction of the workers’ compensation, the human rights issue or Charter issue must be raised in the context of the workers’ compensation application.

The workers’ compensation process is fundamentally different from that of the human rights issue, apart from the starting point of a workplace injury.

Ontario’s workers’ compensation legislation is typical of the statutes across Canada which require a specific number of employees and a set time period of employment, such as 20 employees and one year to allow for re-employment obligation. The obligation to re-employ, when applicable, is not applicable once two years have passed from the work-related injury.

There is no actual reinstatement remedy under this process where the employer has failed in this obligation. There is financial compensation mandated but this is a far different form of relief when contrasted to the dramatic lost income and reinstatement remedies under the human rights process.

B.C. has recently amended its legislation dealing with this issue of the employer’s obligation to allow for a return to work. This provision is much different from that of Ontario and contemplates a real life obligation to allow for a return to work. That being said, the obligation exists for a limited time period, which is 2 years from the date of the injury.

Certain workers’ compensation statutes offer a test of the employer’s obligation to re-employ which is not based on the test of “undue hardship” but rather “suitable employment”.

New Brunswick, Yukon, N.W.T., Quebec all use this standard of “suitable employment”, as does the new law in B.C.

P.E.I., Nova Scotia, Manitoba and Ontario use the test of “undue hardship” as required by human rights law. P.E.I.’s statute requires the worker be given the “first available suitable work” which implies that the accommodation is not immediate.

Clearly these statutes are not consistent with protected human rights entitlements to be considered for return to work following a disability, given the failure to address the universal population of injured workers, the time limitations and even the very obligation to accommodate a return to work.

It is very much in debate as to whether these provisions show compliance with Charter values and human rights statutes. Ironically, a worker’s position may be well improved by his assertion that his disability was not work related, particularly where there exists disability insurance to provide immediate financial solace.

The worker will be well-advised to consider the alternatives available to them. It is true that the workers’ comp scheme will not require a liability finding such as conduct which is in violation of the human rights statute. Given an older worker with a likely long term disability extending beyond the age parameters set out above and/or the need for reinstatement, the human rights process will be more attractive, where liability is seen as secure.

Again, the propriety of these issues may be raised in only one forum. If there is no jurisdictional eligibility for workers’ compensation benefits and the employer has failed to offer proper accommodation, the human rights process should be pursued.