STEP-BY-STEP Guidelines for Managing the Return to Work

Managing a return-to-work case is often a complex responsibility. Return-to-work cases present challenges because they involve the careful balancing of an employer's right to manage a productive workplace with a worker's fundamental right to equality, dignity, and privacy. Employers--and those representing employers, such as directors, supervisors, or human resources officials--may be unsure of how best to approach a return-to-work case, particularly when the employee requests difficult or unexpected accommodation measures.

This section contains general guidelines to support you in approaching a return-to-work case. These guidelines clarify what you are entitled to as an employer, what your legal obligations are, and what you can expect from employees, unions, and other stakeholders during the return-to-work process.

These guidelines are NOT intended to replace your organization's internal policies regarding return-to-work/accommodation case management (if your organization has such policies in place, as is recommended). Instead, they are meant to show that an open communication process facilitates efficient case management and ensures a better outcome for all parties. Consult your organization's human resources department if you require information on any internal policies that may be in effect.

The step-by-step procedures presented below describe the general phases that apply to most return-to-work situations. Use these procedures to help guide your approach and decisions, but also keep in mind that you should evaluate each case individually, as each presents unique circumstances.

Step #1: Gather details and assess the situation

Maintain contact with the employee during a prolonged absence

In most cases, but not all, it is a good practice to maintain occasional contact with an employee during their absence. By getting in touch with the employee once in awhile, you can find out how they are doing and, in some situations, find out approximately when they might be able to return to work. This will give you time to make arrangements in advance. However, you should not contact the employee so frequently that they feel pressure to return to work before they are able.

Respond when the employee tells you they are ready to return to work

The first step in managing a return-to-work case begins when an employee contacts you to tell you when they will be ready to resume work. They may contact you by phone, email, fax, or letter, or they may speak with you in person.

In certain cases, you may already have scheduled a date for the employee to return to work. If the employee doesn't get in touch with you by the agreed-upon date, you should try to reach them to get an update on their condition. In other situations, you may have no clear idea when the employee will be ready to resume work, as is often the case with absences due to illness or injury.

If the employee requests accommodation measures that raise questions or concerns, you should immediately tell them that you'd like to discuss their request further. You should emphasize that you are concerned about the employee's health and need to better understand the situation in order to make a decision and find appropriate solutions.

Supervisors are entitled to ask for additional time to assess an accommodation request if the employee doesn't provide enough notice prior to their expected return to work. For their part, employees have a responsibility to give their supervisors enough time to prepare for their return to work, particularly if they are requesting accommodation for specific needs.

If you need extra time to consider an accommodation request, you should ask the employee if they are able to return to their job (without measures for accommodation) until a decision is made. If the employee is unable to do this, you should arrange for temporary accommodation measures. If that is not possible, the employee will have to remain on leave. If you advise the employee to stay on leave, you should have records on hand to demonstrate that you researched various options for temporary accommodation.

Create a case file

Be sure to create a case file for each return-to-work situation you manage. Take detailed notes during all conversations and meetings regarding the situation. Keep copies of these notes in the case file.

A case file is critically important for several reasons:

• The file will become an important resource for reviewing case details.
• With these records, you can easily track the progress of each case.
• A case file will provide you with a record of all correspondence with employees, health specialists, and other stakeholders, should any misunderstandings arise.
• A detailed case file helps to document and demonstrate your efforts to meet your duty to accommodate, should a case be appealed.

Review any medical information submitted by the employee

During the initial stages of managing a return-to-work case, you should review any health or medical information that has been submitted by the employee, such as a doctor's note or certificate. Before returning an employee to work, you need to be certain that you have enough information about their capabilities and limitations related to the job duties.

As a supervisor, you have a responsibility to protect the health and safety of employees while they are at work. Therefore, you are entitled to gather certain health and medical information about an employee as they are preparing to return to work.

You are entitled to find out how the employee's medical condition will affect their ability to complete job duties. Note that you are NOT necessarily permitted to obtain a diagnosis of a condition, only details of how the condition may have an impact on the job. For example, you might be advised that an employee needs to attend weekly medical appointments and is taking medication that would prevent them from operating heavy machinery, but you would not be told the exact diagnosis or cause of the condition (such as depression). Please refer to Step #2 for more details on what medical information you are entitled to obtain.

Tip – Be open-minded

There are many ways to approach a return-to-work situation. Research shows that the more options you are at least willing to consider and discuss, the more cooperation you'll receive from the employee, their colleagues, and other stakeholders, such as union representatives.

For their part, the employee is obligated to provide documents that clarify health restrictions and describe the type of accommodation that would be most effective to facilitate their return to work.

Meet with the employee

In complex cases, you should ask the employee to attend a meeting as soon as possible to verify details of their expected return to work and any associated accommodation requests. In straightforward situations, a discussion over the telephone will suffice. Note that the employee has a legal obligation to actively participate in the accommodation process.

During the meeting or telephone conversation, take detailed notes so that you will better understand and recall the discussion. Add a copy of these notes to the case file.

When speaking with the employee, you should attempt to clarify anything that is unclear in medical information provided by the employee.

Another important point to establish during this meeting is whether or not the employee would like a union official to represent them during the return to work/accommodation process (see Step #3 for more information on this).

Request employee's consent to obtain further medical or health information (if necessary)

As a supervisor, you have a duty to make informed decisions on accommodation. In order to do this, you need to gather adequate information about the employee's situation, and abide by privacy and human rights laws while doing so.

If you feel you don't know enough about the employee's situation, you need their consent to retrieve additional information. If the employee refuses to cooperate, explain to them that you cannot properly assess their needs and cannot proceed with the accommodation process until you get this information.

It's important to ensure that the employee knows that this information will only be used to determine appropriate accommodation measures. You should also explain that the organization has standard procedures to make certain that the employee's medical information is kept confidential and shared only on a need-to-know basis. Contact your organization's human resources department if you need more details about these procedures, so that you can describe them to the employee.

Step #2: If necessary, consult with health and medical specialists

In general, supervisors are entitled to receive the following medical information:

• Information about the employee's current medical condition
  You are entitled to find out how the employee's medical condition will affect their ability to complete job duties.
• Prognosis for recovery (if available)
  You are entitled to know if the condition is temporary or permanent (if the medical professional has this information; sometimes a prognosis cannot be established). If it is a temporary condition, you are permitted to find out how long accommodation might be required.
• Information on the employee's capabilities for alternative employment
  If it is determined that the employee is not capable of performing their normal or modified job duties, alternative positions must be considered. You are entitled to know the employee's capacity to perform alternative work.

Tip – Provide detailed information

When consulting with doctors and other health specialists, such as occupational therapists, it's vital to provide as much detailed information as possible about an employee's job duties and the workplace setting. Describe the work environment so that the specialist understands how and where the employee works and what equipment is used for the job.

If medical information provided is inadequate, obtain expert advice

If--after meeting with the employee and reviewing any medical document they have submitted--you feel you cannot make an informed decision on how to accommodate an employee, you may take steps to learn more about the employee's health status.

• Request clarification from the employee's doctor or health specialist
  As a first step in clarifying health information, you need the employee's consent to make further inquiries with the employee's own physician. If after that you are still unclear, you can then seek additional information from an outside specialist.

• Request that the employee undergo an independent medical assessment
  

A medical exam by an independent assessor is allowable only in a few specific circumstances. Generally, medical exams are permitted in cases where an employee is returning to work after a serious illness or accident.

You may request an exam if you have reason to believe that an employee is not fit to do their job, and that a return to work might endanger their health or the well-being of others. In this circumstance, you must prepare a clear explanation of why you feel the employee's return to work presents a real, immediate, and significant risk to the employee's health. Be sure to document these reasons in the case file. It is NOT acceptable to request a medical exam simply out of worry that the employee's medical condition may come back or get worse.

Step #3: Consult with union representatives (when necessary)

Determine if it is necessary to consult with the union

A union representative can provide you with valuable advice as you explore various options to accommodate an employee who will be returning to work.

You are required to include the union in return-to-work/accommodation discussions when:

• Your proposed accommodation measures will affect the rights (e.g. seniority rights) of other employees under collective bargaining agreements; and/or
• The employee tells you they want their union representative present during discussions regarding accommodation options.

Arrange to speak with a union representative

Once you have assessed the situation and determined that the union should be involved, arrange to speak with a union representative, either in person or over the phone. Review the case details with the union official, while taking care to respect the confidentiality of any personal information collected from the employee. Remember that personal information must only be shared on a need-to-know basis. Be sure to take notes and keep a copy in the case file.

Unions have a responsibility to cooperate with supervisors to find accommodation solutions for employees returning to work.

The courts have made it clear that unions are required to support accommodation measures regardless of what has been specified in collective agreements. In other words, unions cannot block a viable accommodation option, such as a transfer to another position, because it may violate the terms of a collective agreement; in fact a union can be held liable if it hinders such efforts to accommodate.

However, collective agreement provisions are to be respected. Supervisors are obligated first to explore the accommodation options that will not interfere with rights and entitlements provided under collective agreements.

Tip – Stay positiveIn communications with all stakeholders, stay positive and upbeat as much as possible. If you show that you're committed to working through the accommodation process, you'll develop a rapport with stakeholders and earn their trust. This can help to get the situation resolved and get the employee returned to work more quickly.

Step #4: Review the accommodation options with the employee and other stakeholders

Decide on your accommodation options

As a supervisor, it is your responsibility to ensure that all accommodation options have been explored, and that the option chosen is consistent with medical information obtained and best meets the needs of the employee, the employer, and other stakeholders. In situations where co-workers will be affected, you are obligated to select an option that is least likely to interfere with seniority and collective agreement rights.

Remember that you are not required to implement a perfect solution for the employee, or one that they specifically demand. However, the employee is entitled to a solution that meets their medically verified needs. Keep an open mind when considering the various approaches to accommodate the employee. If there isn't one obvious solution, look at the possibility of using a combination of options.

If you determine that accommodating an employee would result in undue hardship to the employer, you may choose to decline the request. Keep notes in your case file as to why you have rejected the request. You may need to explain your reasoning if the employee chooses to appeal the decision through a higher level in your organization, or if the case is referred to the Canadian Human Rights Commission.

If you are considering declining an accommodation request, you are encouraged to discuss the matter with advisors from your organization's human resources department. Please refer to section on "undue hardship" for more information on your legal right to refuse accommodation requests.

Discuss your recommendations with the employee

After you have consulted with stakeholders and collected the necessary information, you should prepare to present the employee with one or more of your recommended options to accommodate their return to work. It may also be beneficial to include other stakeholders, such as a representative from your organization's human resources department or union officials, in this discussion.

Schedule a time to review your recommended option(s) with the employee and other stakeholders (if necessary). During this meeting, you'll have the opportunity to answer any questions and clarify any points that may be misunderstood. This also gives the employee a chance to respond to your proposed solutions and provide any feedback to help finalize them.

If the employee refuses your proposed accommodation measures, you may decide to explore other options or, as a last resort, deny their request (if you feel you have met your duty by offering them a reasonable accommodation option). Be sure to take notes describing the employee's reasons for refusing the accommodation. It is recommended that you contact your organization's human resources department or other designated officials for further guidance before halting the accommodation process.

Step #5: Implement accommodation measures

Having reviewed your recommendations with employees and stakeholders, and made a decision, you are ready to move ahead with implementation. You should work as quickly as possible to implement the accommodation measures you have selected. The employee can get back to work without delay, and you will demonstrate that you are committed to an effective return-to-work process. This contributes to building an organizational culture of trust and respect--values that boost the overall productivity of the workplace.

Monitor the effectiveness of the accommodation

Once the employee has returned to work, you should periodically evaluate the effectiveness of the accommodation measures. Speak with the employee to find out if they are able to work productively, and if any of the accommodation measures need adjustment. When applicable, verify that the employee's co-workers are comfortable and able to manage any reassigned or additional job duties. If you need assistance with reassigning duties among co-workers, seek guidance from your organization's human resources department or other designated officials.

Advise the employee of the appeals and complaints process (if necessary)

If you feel that you have done everything reasonably possible to meet your duty to accommodate, and the employee remains dissatisfied, tell them they have the option to appeal the decision at a higher level in the organization. Give them information on how to begin this process, according to your organization's internal policy. You should also advise the employee that they can take their concerns to the Canadian Human Rights Commission.

Roles and Responsibilities in the Return-to-Work Process

Employers (including employer representatives, such as directors, supervisors, and human resources officials), employees, and unions share in the responsibility to find solutions for managing the return to work. Below are lists summarizing the main roles and responsibilities that each party has in the process.

Employer/Supervisor's Responsibilities

1. Ensure employees are aware of their right to accommodation, explain details about the workplace accommodation policy, and distribute copies of the policy.
2. Once a request is received, discuss the accommodation options with the employee.
3. Take notes and keep records of all discussions about accommodation.
4. Take an active role in exploring alternative approaches and solutions to accommodate the employee.
5. Obtain expert opinion and advice from a designated human resources or health specialist when necessary.
6. Keep information/medical records confidential.
7. Grant accommodation requests in a timely, reasonable manner, to the point of undue hardship (for information about undue hardship).
8. Be willing to review and modify the accommodation agreement if the circumstances change or the solution is no longer working.
9. Provide details to justify decisions where accommodation has been denied.
10. Advise employees about their right to appeal and their right to approach the CHRC.

Employee's Responsibilities

1. Request accommodation when needed and suggest appropriate measures, if possible.
2. Provide information/documentation from a qualified health care professional to clarify health restrictions and describe the type of accommodation that would be most effective.
3. Cooperate with any experts who are asked to provide guidance on the situation.
4. Respond to the employer's reasonable request to undergo an independent medical exam. Note: employees cannot be forced to submit to an independent medical examination, but failure to comply with a request may delay the accommodation process.
5. Allow a reasonable amount of time for the employer to reply to the request for accommodation.
6. Participate in any discussions regarding possible accommodation solutions.
7. Listen to and consider any reasonable accommodation options that the employer proposes.
8. Achieve the agreed-upon job performance standards once accommodation is provided.
9. Work with the accommodation provider on an ongoing basis to manage the accommodation process.
10. Advise the employer of changes in accommodation needs.

Union Responsibilities

1. Take an active role as partners in the accommodation process.
2. Provide accommodation advice and guidance.
3. Support accommodation measures regardless of the collective agreement, unless to do so would impose undue hardship.
4. Work with the employer to address existing barriers in the collective agreement, ensuring that no new barriers are added.