Preferential Treatment for Employees with Active WSIB Claims not Discriminatory

By Stringer LLP

November 9, 2017

The Human Rights Tribunal of Ontario (the “Tribunal”) recently held that it is not discriminatory for employers to treat disabled workers with active WSIB claims more favourably in the accommodation process than disabled workers without such claims.

The Case

The applicant in Carter v. Chrysler Canada had long-standing, permanent medical restrictions caused by work-related injuries to his right arm. He later experienced two heart attacks, and thereafter had to stop working entirely for a time. Eventually, his cardiologist recommended that he return to light duties. However, while the applicant had been off work, he was bumped from his previous job by a worker with more seniority. There was some confusion regarding his restrictions, as his specialist failed to respond to various requests for medical information and clarification. As a result, the company delayed returning the applicant to work.

The applicant claimed that the employer treated work-related disabilities differently from non-work-related disabilities. Generally, workers who were receiving benefits under the Workplace Safety and Insurance Act (“WSIA”) were returned to work more quickly, even when they had significant restrictions, when compared to other workers with such restrictions. The latter tended to remain off work longer and in receipt of sickness and accident benefits. The employer did so to minimize time lost during the New Experimental Experience Rating (“NEER”) cost window, which extends approximately four years after an injury. The greater the amount of work time lost during this window, the higher the employer’s assessments are likely to be under the WSIB’s NEER system.

The incentive to avoid higher assessments was so great that the employer would sometimes assign injured workers with active WSIB claims non-productive work, such as reading workplace manuals, if no productive work was available within their restrictions. Such work would never have been offered to an injured worker without an active WSIB claim. The applicant in this case had non-work-related as well as work-related restrictions; however, he did not have an active WSIB claim.

The Decision

The Tribunal noted that the WSIA provides those with work-related injuries and restrictions with various benefits not available to employees with non-work-related restrictions. The Tribunal found that the fact that the statutory scheme provides such differential benefits is not discriminatory. As such, the Tribunal determined that there was differential treatment, but no discrimination.

In order to prove discrimination under the Human Rights Code, there must be evidence of a distinction based on a prohibited ground that creates a disadvantage. It is not enough for a disabled employee to experience disadvantage; he must experience disadvantage because of his disability. Although the result in this case was that some disabled employees were treated more advantageously than others, this did not occur because of their disabilities, but because of the presence or absence of an active WSIB claim, which is not a prohibited ground under the Code. As such, the Tribunal found that this distinction is permissible.

The employer still had a duty to accommodate the employee to the point of undue hardship. The Tribunal found that the employer had failed to consider the employee for a certain class of job opportunities, and that this failure was discriminatory. However, because there was no evidence that any actual jobs would have been suitable for him at that time, he was awarded $5,000 in compensation for injury to his dignity, feelings, and self-respect.

The Takeaway

Generally, where no suitable work is available for an employee’s restrictions, employers are not required by human rights law to accommodate a disabled employee by generating new positions for them, or providing them with unnecessary, unproductive work. Employers should consult with an employment lawyer who is familiar with the WSIB’s system to determine the most effective strategy for reducing costs to their organization.

This blog was first published on First Reference Talks.