December 15, 2022
As the holiday season approaches, concussion recovery can become especially challenging. The hustle and bustle of the holidays often bring increased social expectations and overwhelming schedules that can cause additional…
Concussions and the Workplace: What are your Rights in Ontario?
If you’ve suffered a concussion and are experiencing ongoing symptoms, your ability to complete the tasks of your employment have probably been affected. While you rehabilitate and work towards recovery, the dynamic between you and your employer can change, and sometimes become contentious. Many people are unsure of their rights in the workplace after suffering an injury such as a concussion. The Ontario Human Rights Code protects people who cannot perform their job duties as a result of an injury or disability by prohibiting discrimination in the workplace.
What is Discrimination?
Discrimination is the adverse treatment of someone based on a personal characteristic that disadvantages them from opportunities available to those who do not have that characteristic. The Ontario Human Rights Code protects people from discrimination based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. This protection extends to employees in the workplace.
One of the protected characteristics is “disability,” which would include people who are suffering from concussion symptoms. If an employer’s standards, rules, policies or working conditions disadvantages someone based on the concussion symptoms they are experiencing, that employer may be liable for discrimination. In those cases, an employee can claim money or “damages” under the Ontario Human Rights Code.
However, even if the employer’s standards, rules, policies or working conditions do disadvantage someone who is disabled, the employer may avoid liability if they can show they have accommodated that employee to the point of suffering undue hardship.
What is an Employer’s Duty to Accommodate?
Upon being made aware that an employee has a disability, an employer has a duty to take steps to alleviate the effects of a potentially discriminatory workplace practice. This is called accommodation. An employer has a duty to reasonably accommodate the employee’s condition. This could come in the form of offering more breaks, different workplace conditions, changing the employees job duties, etc. However, there is a limit to how far the employer must go to accommodate, and that limit is to the point of suffering “undue hardship.”
What is Undue Hardship?
The courts in Ontario have considered a different factors to determine whether an accommodation would cause an employer to suffer undue hardship. Each situation is to be assessed on a case-by-case basis, but common factors to consider include, but are not limited to, safety, financial cost, interchangeability of work force and facilities, disruption of a collective agreement and morale of other employees.
To avoid liability for discrimination under the Ontario Human Rights Code, an employer would have to show they considered their discriminatory practice, but there was no reasonable alternative that would allow the employee to complete their duties without the business suffering undue hardship.
What are the Employee’s Obligations?
It is important that you are following the recommendations of your treatment provider or family doctor from the outset of your injury. You should be regularly following up with your treatment provider to assess your progress and capabilities.
Your employer must be provided with all the information necessary for them to decide how they can reasonably accommodate your condition. If your treatment provider writes a note recommending reduced or modified duties, that should be forwarded to your employer.
Following up with your treatment provider is particularly important when dealing with concussions, which can have a wide range of symptomology and duration. If you have provided your employer with a note from your treatment provider, their duty to accommodate is triggered and they must work with you to find a reasonable alternative.
How does this Translate to a “Real-World” Example?
Let’s say you work an administrative job that requires you to stare at a computer screen for 3 hours at a time. Then unfortunately, you suffer a concussion. You’re now limited to staring at a screen for only 30 minutes at a time before you begin feeling dizzy, nauseous and severe head pain. You visit your concussion specialist, they write a note explaining this condition and that note is passed on to your employer.
Your employer must then offer reasonable accommodations for the disability you have (ie. unable to stare at a screen for more than 30 minutes). One example of accommodation could be to offer you a 5-minute break every 30 minutes. If this alleviates your symptoms, and does not cause them to suffer undue hardship, then they are not being discriminatory by demanding you return to work with those modifications.
However, if your employer demands that you continue to work in 3 hour stretches, and do not offer any reasonable alternative when one exists, they are being discriminatory based on disability. If they take it one step further and terminate your employment because if your inability to work those 3 hour stretches, they may be liable for a claim for wrongful termination and depending on the situation, could be liable for additional damages under the Ontario Human Rights Code.
Every situation is unique depending on the disability and employment situation. You should be following up with your treatment provider regularly from the onset of symptoms. Your limitations should be communicated to your employer so that their duty to accommodate is triggered. You should also consult with a lawyer right away so you know your rights, and what you should or should not be forced to do in the workplace.
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