DUTY TO ACCOMMODATE:

RETURN-TO-WORK SITUATIONS WHERE THE EMPLOYEE HAS REQUESTED RELOCATION

In return-to-work situations, it is important to note that the obligation to accommodate is neither unlimited nor one sided.

An employer is able to terminate based on undue hardship. Nevertheless, the responsibility for the employer to create and maintain a respectful workplace remains, and a return-to-work must be accommodated as far as reasonably possible.

Employees cannot insist that they be removed from the department and appointed to a substantive position in another department but they can insist that the hardships they faced – which forced them to leave their work or which are forcing them to contemplate “flight” – are resolved by the employer.

Obligations of the Employer

The employer is obliged to provide a respectful, harassment-free work environment, and to remove obstacles to a successful return to work.

The employer is obliged to examine the possibility of adjusting the occupational requirements of the work to facilitate the employee’s return to work, or to make serious efforts to find the employee alternative work. The employer may not refuse to help the employee return to his or her job unless it can be demonstrated that the changes to the occupational requirements would themselves cause undue hardship.

The employer is obliged to provide assistance in resume preparation and referrals to available positions in other departments, should that be the chosen option of the employee.

The employer is not obliged to appoint an employee to a position in another department.

Obligations of the Employee

For his or her part, the employee must be receptive and open-minded to the efforts being made by the employer to achieve a successful return-to-work, either in the substantive position or in another position within the department.

Role of the Union

The union can assure their members of support and guidance when issues develop in a workplace that force a member to consider going on sick leave as a remedy and we can help with the return-to-work transition.

It is very important that members contact their local representative early. Remember that Labor Relations represents management, and the union represents the membership.

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REFERENCES:

Fontaine v. Deputy Head (Department of Fisheries and Oceans)

http://pslrb-crtfp.gc.ca/decisions/fulltext/2012-91_e.asp

Public Service Employment Act, Section 29

http://laws-lois.justice.gc.ca/eng/acts/P-33.01/page-7.html#h-13

 

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