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nine to five

The question

I work part-time at a hardware store. I recently injured my wrist (not on the job) and was moved from my usual department to the front cash while I heal. Now I’m only getting about half of the hours I normally get. Does my employer have an obligation to keep my regular number of hours while I am recovering from an injury?

The first answer

Sarah Coderre, partner, Bow River Law LLP, Calgary

Your employer has an obligation under human rights legislation to accommodate your injury and disability in the workplace up to the point of undue hardship. Moving you to the front cash to accommodate your physical limitations while you heal from your wrist injury is within the scope of a reasonable accommodation. However, reducing your hours when it is not medically required and without any explanation is not reasonable. It is possible that your employer has misunderstood the scope of your medical restrictions and thinks you need to work fewer hours, or perhaps is trying to lessen the impact that scheduling you on front cash is having on other employees. However, it is also possible that they are upset that they must accommodate you at all, and they could be lashing out against you.

Regardless of the reason, your employer should not expect you will work fewer hours when you are physically capable of working your regular hours at the front cash. You should have an open discussion with your employer about your reduced hours and find out why they have cut your hours. It could be an innocent misunderstanding about your medical limitations or their obligations under human rights law to you that could be clarified with a discussion. It could also be that they are trying to not cut the hours of other staff by adding you into the front cash schedule, but while that makes logical sense, it would not be legally justified unless they could show that it was not be possible to give you regular hours on the front cash and there were no other jobs they could have you do at the store to fill up the time. However, if your hours are being reduced because they are upset you asked for accommodations, that would be discriminatory, and you could file a human rights complaint.

The second answer

Rahul Soni, barrister and solicitor, Soni Law Firm, Toronto

Your employer must provide you with reasonable accommodations up to the point of undue hardship. The question of whether the provided accommodations are reasonable will be answered based on looking at two components: procedural accommodations and substantive accommodations.

Procedural accommodations look at whether your employer acted in good faith and worked with you in exploring possible solutions to accommodating your injury. For example, your employer would be obligated to: listen to your concerns about your injury, review your provided medical documentation, try to find a way for you to do your job with modifications or help and explore creating a new job for you by piecing together different tasks from other roles.

Substantive accommodations look at whether the final provided workplace accommodation was fair under the circumstances, including not causing the employer undue hardship.

Whether it was appropriate for your employer to move you to a different department and provide half the working hours will require a deeper look into the procedural accommodation process, including: what did your medical professionals state as your limitations and accommodation requirements? Could you still safely work in your old department if provided role modifications or extra help? Was the new front cash job all that the employer could offer you without suffering undue financial or operational hardship? Were the front cash job hours in line with what you could medically manage and the employer’s actual operational needs? Remember, you are entitled to reasonable, but not perfect, accommodations, which may manifest as changes to your job duties, schedule and even pay.

Did your employer meet its obligations for providing reasonable accommodations, up to the point of undue hardship? It all depends on your unique facts and circumstances.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.

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