Workplace Wire - Connecting Employers to Developments in Labour, Employment & Pension Law

In Davies v. Honda of Canada Mfg, the Ontario Labour Relations Board (“OLRB”) recently clarified what will not constitute acts of reprisal under s. 50 of the Occupational Health and Safety Act (“OHSA”).

An employee complained that he was not returned to work safely and consequently, faced a loss of work and income. The employee gave sixteen examples to demonstrate that the employer’s responses to his complaints about safety were reprisals. Ultimately, the OLRB dismissed fifteen of the sixteen allegations for failing to disclose a prima facie case of reprisal, sending the sixteenth on to a hearing on the merits.

Employers constantly face the risk of reprisal allegations by employees. However, employers can rest assured that not every response to requests about safety will amount to a prima facie case of reprisal: a threshold is required. An employee must allege the breach of a specific right in the OHSA and establish a nexus between that right and the employer’s alleged acts of reprisal. Disagreements about the duty to accommodate, for example, although related to workplace safety, do not amount to a prima facie case of reprisal.

The law on reprisals, generally speaking, is as follows: Reprisal is any employer action that threatens the job security of, disciplines, imposes a penalty on, or intimidates or coerces an employee for invoking his or her rights under the OHSA. The onus of proof lies with the employer when an employee complains to the OLRB, but only if the employee can demonstrate a prima facie case of reprisal. A prima facie case of reprisal is established when the underlying facts of the allegation, if true and provable, constitute a form of reprisal. For example, employers are required to give employees the requisite information and instruction regarding health and safety in the workplace. A prima facie case of reprisal would be established if an employee alleged that he was threatened with losing his or her job for demanding that the employer comply with the obligation to give the requisite information and instruction.

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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.

We are now at our final entry reviewing the key chapters of the Arthurs Report. We will not be reviewing chapter 9, which comments on a number of matters that Professor Arthurs felt compelled to mention, but which he says fell outside his mandate.

To conclude then, chapter 7 of the Report considers funding occupational diseases, short and sweet.

To contextualize his ultimate recommendations, Arthurs notes that occupational disease claims constitute a rapidly growing number of total claims, up from 6% in 2000 to 10% in 2010. This trend is likely to continue to grow but we cannot say by how much. This presents a particular cost concern since in occupational disease claims, there is a higher percentage of fatalities, which means disease claims typically cost 10 times as much as other claims, often with $400,000 to $600,000 in survivor benefits. Having all this in mind the WSIB has established a $600 million reserve for future costs, which is considered by the experts to be a reasonable mid-range estimate as to future occupational disease costs.

As noted at the end of this blog entry, Arthurs recommends, firstly, to set up a medical/scientific panel to continue to study issues related to occupational diseases and, secondly, to keep the costs of such claims in the WSIB system.

His next recommendation deals with the issue of who pays for occupational disease claims. Here, happily, he recommends that the WSIB continue its current approach of not subjecting long latency diseases to experience rating. Arthurs also proposes that the cost of the reserve fund noted above should be borne by all Schedule 1 employers. However, when it comes to a decision to treat certain diseases as being associated with a particular work process or industry, Arthurs proposes that up until such a decision is made the claims costs should be split between the industry class/sectoral group and all Schedule 1 employers. Thereafter, the costs of such new claims should be assigned to the industry class/sectoral group alone.

Moving on to chapter 8, Arthurs deals with the subject of inflation protection for partially disabled workers.

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As we recently reported, the Arthurs Report, formally titled Funding Fairness: A Report on Ontario's Workplace Safety and Insurance System, has been released and is available online.

The 188 page report covers a lot of ground and so we have decided to review it in a series of blog entries.

We will begin with a brief overview of the Funding Review, the scope of its mandate and the central driving force behind it, the Workplace Safety and Insurance Board’s (WSIB) Unfunded Liability (UFL).

As noted in the Arthurs Report, the Funding Review "was clearly triggered by the 2009 Annual Report of the Auditor General of Ontario, which challenged the WSIB’s funding policies and performance". More to the point, "the Auditor General's report expressed concern about the long-term financial viability of the WSIB given its apparent inability to reduce or eliminate its unfunded liability".

In September 2010, at the WSIB’s request, Professor Harry Arthurs was appointed to carry out the Funding Review along with a panel consisting of Maureen Farrow, Buzz Hargrove, John O'Grady and John Tory, who were appointed to advise and assist him. Arthurs was further assisted by other resources including WSIB officials, technical staff, researchers and the actuarial firm of Morneau Shepell.

The Funding Review was specifically mandated to consider the following six issues:

·         The WSIB’s UFL;

·         Premium rate setting;

·         Rate groups and apportionment of financial responsibility among employers;

·         Employer incentives and experience rating;

·         Funding occupational disease claims; and

·         Indexation of benefits for partially disabled workers.

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The Ontario Ministry of Labour is seeking submissions on a proposed new regulation under the Ontario Occupational Health and Safety Act (“OHSA”) that would provide assistance with OHSA reprisal complaints, including education, legal advice and representation, to non-unionized workers and small employers (fewer than 50 employees). The proposed regulation would expand the mandate of the Office of the Worker Advisor (“OWA”) and the Office of the Employer Advisor (“OEA”) to provide reprisal complaint assistance. Currently, the OWA and OEA assist workers and employers under the Workplace Safety and Insurance Act, 1997 (“WSIA”).

Section 50 of the OHSA prohibits employers from dismissing, disciplining, penalizing, or intimidating or coercing a worker because he or she has, among other things, acted in accordance with or sought enforcement of the OHSA, its regulations or an order under the OHSA or testified in any OHSA proceedings.  Workers who allege violation of this prohibition may resolve their complaint through binding arbitration under a collective agreement (if any) or by filing a complaint with the Ontario Labour Relations Board (“OLRB”). The Dean Panel, which was appointed to review Ontario’s occupational health and safety regime, found that the OLRB system was too complicated for unrepresented parties and reprisal complaints were often abandoned without being adjudicated.  To address this situation, the Dean Panel recommended expanding the mandate of the OWA and the OEA to provide assistance to workers in pursuing and assistance to small employers in responding to reprisal complaints. The proposed regulation will expand the mandate of the OWA and OEA to provide reprisal complaint support and advocacy services to workers and small employers, respectively.

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On July 15, 2011 the WSIB introduced several changes including those to the NEER window and the final version of Work Reintegration guidelines.

What do these changes mean? In general, they are aimed at increasing pressure on employers to return injured workers to the workplace. This is being done through a renewed emphasis on the return of injured workers to the accident employer rather than into the general labour market. The WSIB has also increased the amount of time that an injury claim may have an effect on WSIB premiums by one year. This has been done through extending the NEER window from 3 to 4 years. Four years is a long time for an injury to have an impact on an employer's costs.

Are increasing potential costs to employers the right way to go? One has to ask if getting more aggressive with employers alone is likely to improve the chance of injured workers returning to work. Greater scrutiny of employee claims of workplace injury and reduced incentives for malingering would also be in order.

Employers will need to devote even more resources into active claims and potentially revisit internal procedures aimed at returning injured workers. If they don't, they'll pay.

Heenan Blaikie’s Jeremy Warning recently spoke at the Construction Labour Relations Conference in Toronto, hosted by Insight Information. During the session “Preparing for the Worst: How to Respond to a High Risk Incident” Jeremy provided advice to construction managers on what to do if there is an injury at the workplace.

This is the third video from Jeremy’s presentation from a four-part series recorded by Reed Construction Data Canada. We will post the last video next week.

Once upon a time, if an employer was outside the NEER window and was finding it difficult to reintegrate a worker who had a workplace injury, it was relatively straightforward to arrange to have the worker go into the WSIB's "Labour Market Re-entry" program. For the employer, this often effectively solved the problem of trying to "accommodate" the worker's restrictions, usually at little or no cost to the employer. However, LMR was an enormously expensive program for the WSIB.

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