My husband worked at a kitchen warehouse for almost four years as a clerk, which involved carrying 15-kilogram loads, desk work, etc. Last year, he had heart surgery. Our physician confirmed he can return to his job with modified duties, but the employer won’t accommodate him. What are our options?
The First Answer
Daniel Lublin, partner, Whitten & Lublin Employment Lawyers, Toronto
The company has an obligation to accommodate your husband unless doing so would cause it undue hardship, meaning accommodation would result in an unreasonable or disproportionate burden, obstacle or cost. In essence, the company has to make every reasonable effort to allow him back to work, either in a modified version of his job that corresponds with his medical limitations, or a different job that he can perform within his medical limitations. There are very few exceptions.
It’s hard to see how this employer could not find modified work on a temporary basis or permit a gradual return to work. It probably just does not want to. If the doctor has recommended that your husband not lift or carry heavy objects, for example, the company should be able to accommodate this requirement by providing your husband with more clerical or desk work, which he was already doing. It also does not appear that the company performed any real analysis of your husband’s limitations or looked at whether it could accommodate him if it wanted to – something it was required to do.
Your husband has a viable human-rights claim based on the company’s failure to accommodate him, and if it refuses to permit him to return at all, it would be viewed as a discriminatory termination.
The Second Answer
Bill Howatt, chief of research for work force productivity, Conference Board of Canada, Halifax
If the employer has ample evidence, it might be able to prove it is making its decision under undue hardship. The bar is typically quite high, however. A medical accommodation, where a physician recommends a gradual return to work with job modifications, is common and typically accepted by employers, especially in post-surgery cases. How long the accommodation is required and the degree of job modification should be considered collectively by the employer, the employee and the employee’s doctor.
It would be helpful to validate with your physician your husband’s current state of health and physical capacity for the short and long term. Ask the doctor how long it it will take for your husband to return to his level of health and fitness prior to the surgery, or whether it will ever be possible. Your husband should keep working on his physical health under the supervision of his doctor. This will help in building a medical case as to how well his recovery is proceeding. This step doesn’t pay financially, but his No. 1 job – while determining whether he can take any legal action or if it’s time to look for another job – is to take care of his health, because he’ll need it for any future work.
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