The Supreme Court of Canada (SCC) recently rendered judgment in Québec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron (Caron Judgment), integrating the concept of reasonable accommodation into the assessment of the right to return to work of an employee who has suffered a work-related injury under the Act respecting industrial accidents and occupational diseases (AIAOD). The Caron Judgment therefore confirms that Quebec employers have an additional duty under the AIAOD when an employee returns to work after having suffered a work-related injury.

RIGHT TO RETURN TO WORK

The AIAOD provides that employees who suffer a work-related injury may receive various benefits and exercise their right to return to work with their employer in the same employment, equivalent employment or suitable employment:

  • Within one year following the beginning of the continuous absence, if the employee held employment in an establishment numbering 20 employees or fewer at the beginning of the period; or
  • Within two years following the beginning of the continuous absence, if the employee held employment in an establishment numbering more than 20 employees at the beginning of the period.

As a general rule, employees who suffered a work-related injury and become able to carry on their pre-injury employment within one of the aforementioned time limits are entitled to be reinstated by preference to others in their employment in the establishment where they were working or be reassigned to equivalent employment in that establishment or another establishment of their employer. According to the AIAOD, equivalent employment means employment of a similar nature (professional qualifications required, wages, social benefits, etc.) to the employment held by the workers when they suffered the work-related injury. Employees who again become able to carry on their employment after the applicable time limit expires cannot exercise the right to return to work under the AIAOD and are therefore entitled to assistance in finding employment and an income replacement indemnity (IRI) for a maximum period of one year.

Employees who remain unable to carry on their employment as a result of a work-related injury, but become able to carry on suitable employment within the applicable time limits are entitled to hold the first suitable employment that becomes available in an establishment of their employer. According to the AIAOD, suitable employment means appropriate employment that allows employees to use their remaining ability to work and vocational qualifications and, in particular, that they have a reasonable chance of obtaining. Employees who hold suitable employment will receive a reduced IRI reflecting the loss in salary between their pre-injury employment and the suitable employment. If the employer has no suitable employment available, employees may obtain various services and benefits offered by the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST).

CARON AND ITS IMPACT

In 2004, Alain Caron suffered a work-related injury. After terminating his temporary assignment in 2007, his employer decided that, given his disability, Mr. Caron could not return to his pre-injury position as an educator. The employer maintained that it had no suitable employment for Mr. Caron. CNESST informed Mr. Caron that, given the unavailability of suitable employment with his employer, it would pursue the rehabilitation process provided for by law. When the decision was contested, the Administrative Labour Tribunal (ALT) concluded that the duty to accommodate under the Charter of Human Rights and Freedoms (Charter) does not apply to work-related injuries recognized under the AIAOD and that Mr. Caron’s right to return to work had expired.

The SCC held that the duty to accommodate provided for in the Charter must be incorporated into the return‑to‑work process provided for in the AIAOD. The employer has a duty to reasonably accommodate an employee who has suffered a work-related injury once the employee is able to be reinstated in his employment, equivalent employment or suitable employment. Owing to CNESST’s and ALT’s exclusive remedial authority when implementing the right to return to work under the AIAOD, the SCC held that the CNESST and the ALT can impose measures on the employer to reasonably accommodate an employee who has suffered a work-related injury. The employer therefore has to take the duty to accommodate provided for in the Charter into account when an employee requests to be reinstated in his employment. The duty to accommodate applies to the point of undue hardship for the employer.

In practice, in accordance with the Caron Judgment, an employer could be required to determine whether adjustments or changes can be made to certain positions when an employee who has suffered a work-related injury is able to return to work, even if there is no equivalent or suitable employment, as these terms are defined in the AIAOD. According to the case law regarding accommodation, the employer would be required to agree to such adjustments or changes, short of undue hardship.

As the SCC suggests, the inclusion of the duty to accommodate when analyzing an employee’s right to return to work after a work-related injury could affect the time limits within which an employee can exercise his right to return to work, notwithstanding the express provisions of the AIAOD. The CNESST or ALT could therefore ask an employer to accept an employee’s return to work beyond the time limits provided for in the AIAOD, based on the duty to accommodate, which now forms part of the return-to-work process.