I just finished reading the Human Rights Tribunal of Ontario’s decision in Lagana v. Saputo Dairy Products. Among other things, this case shows that employers may need to be more careful in allowing employees with medical restrictions to work “as tolerated”.

The overall scenario is no doubt familiar to many employers, which I will abridge here to allow for easier reading. Employee claims a back injury. Employer questions whether the injury is truly work-related or happened on the employee’s own time but the WSIB recognizes the injury and the employer attempts to accommodate. There is back and forth between the employee, employer and WSIB, a period of absence and periods of accommodation in modified work. Eventually, the employee is required to perform modified duties on a shift he does not want. The WSIB finds that the duties offered are suitable. The employee alleges he was harassed months before by a supervisor in the accommodation process, insists on working a different shift, refuses to return to the shift that meets his medical restrictions and is ultimately fired for that.

In this case, the Tribunal found for the employer on several of the questions raised in the litigation (some of which I have tweeted about), notably on the alleged harassment and the employee’s termination.  However, it is the Tribunal’s finding that the employer failed to adequately accommodate the employee early in the return to work process which concerns us here.

The Tribunal found that during the employee’s first period of accommodated duties, the employer failed to meet its duty to accommodate because in fact some of the duties the employee was asked to perform exceeded his medical restrictions.

What is interesting to note about this is that the Tribunal accepted that the employee’s supervisor had an informal practice of letting employees decline work which they felt exceeded their medical restrictions.

We often see medical notes with comments to the effect that an employee may do work “as tolerated” and we also often see employees asking for accommodation in the nature of letting them decide how much work they can handle and when. Employers often accede to these sorts of requested accommodations.

And the Tribunal in this case recognized that sometimes this is an okay approach to accommodation:

 “… a reliance on employees self-regulating their work may be a reasonable accommodation measure when  employees have reported a minor injury and when there are no clearly identified medical restrictions.  It may also be a reasonable accommodation with an employee who has identified medical restrictions when they are told that they can decline to undertake a task that is within their restrictions in order to protect them from aggravating their condition.”

However, as this decision also shows:

“… this informal approach is not so appropriate in situations, such as the applicant’s, where an employee has defined medical restrictions and has job functions that potentially extend to tasks beyond these restrictions.  It is not appropriate, in my view, to have an employee potentially undertake tasks beyond their modified duties with a proviso that they do not have to do these tasks if it further aggravates their condition.”

In such cases, for the Tribunal, an employer needs to have a “more formal established protocol” that expressly makes it clear that the employee should not perform tasks beyond his or her medical restrictions.

This sort of paternalistic thinking is not out of line with what we often see in the Occupational Health and Safety law context. Employers are to leave as little as possible to the judgment of individual workers in order to protect them from potential harm. One mantra of the Ministry of Labour is that occupational health and safety legislation “does not rely on competent workers to take care of themselves, but exists to protect negligent, stupid or reckless workers from potential harm at the workplace”. It is not surprising therefore to see this sort of thinking making its way into the accommodation process as well.

The take away from this decision is that in the future employers may need to more carefully consider the scope of individual discretion they grant to workers in deciding which tasks they perform. If there is a risk that the exercise of this discretion could result in a worker performing tasks that exceed his or her medical restrictions, clear direction needs to be given as to which tasks can and cannot be performed in accommodated duties, and ideally these directions should be documented.