The return to work process can be challenging, and feel overwhelming after a brain injury. If you are an employee with a brain injury or an employer of someone with a brain injury, the following information on returning to work may be helpful.
If you are an employer of someone with a brain injury, there will need to be a discussion around accommodations. The employer has responsibilities to accommodate for the employee to the best of their ability. The process of returning to work will take time and likely involve multiple discussions and meetings to understand the employee’s needs. There will also need to be check-ins to ensure the supports are working as planned.
While some companies have set employment accommodations policies and practices, this might be new territory for you. You may be unfamiliar with brain injury or how to go about supporting your employee with returning to work. This can seem overwhelming, especially if you manage multiple employees and aspects of your business/organization.
This section of the website provides information on making accommodations, employees’ rights, vocational rehabilitation, and how to end the employment relationship when returning to work is not possible. This information is meant to help you and your employee understand each other and create an accommodation plan together that works for both of you.
- Principle of Accommodation & the Duty to accommodate
Accommodation is a fundamental and integral part of the right to equal treatment.
The principle of accommodation involves three factors:
- Dignity: An individual must be accommodated in a way that most respects their dignity, including their privacy, confidentiality, comfort and autonomy.
- Individualization: Because the needs of each individual are different, accommodation requires an individualized approach. There is no set formula for accommodation. Each person's needs are unique and must be considered on a case by case basis.
- Inclusion: Achieving integration and full participation requires barrier-free and inclusive design and removing existing barriers. All individuals should have access to their environment and face the same duties and requirements with dignity and without impediment.
A key principle of accommodation is to reach a balance between the employee’s rights and that of the employer to operate an effective workplace. Cooperation and collaboration are key to ensuring this happens. Employers have an obligation to take steps to adjust rules, policies or practices that have a negative impact on individuals, or groups of individuals, based on prohibited/protected grounds of discrimination in Canada.This is called the duty to accommodate.
Provided it is safe to do so, employers have a legal responsibility to provide Reasonable Job Accommodation, to the point of undue hardship, to any employee who comes forward to request it under one of the protected grounds. Disability is a protected ground.
Generally, it is the employee’s responsibility to disclose their accommodation needs to the employer. However, people do not always come forward. Stigma, uncertainty about the process and fear can make individuals reluctant to admit there is a problem or to request accommodation.
The duty to start a conversation about accommodation may shift to the employer if they know or ought to know from changes in an employee’s attendance, behaviour or performance that the employee may need some form of accommodation. This is called the duty to inquire. In some cases an employee who is on the job may request accommodation. In other cases an employee who is returning to work may request accommodation.
- Vocational rehabilitation
Vocational rehabilitation is used to help a person with a brain injury re-learn or develop skills related to a job.
- Changing behaviours & Communication patterns
You may have altered behaviours after a brain injury that change the way you operate. This means that the way you communicate with your employer and workplace.
- Developing confidence to return to work
Confidence is an important part of returning to work. Your self-confidence can influence how you see yourself and your abilities.
- Financial & income security
Brain injury has a financial impact. You may be eligible for compensation from a workplace plan (if your employer has a program in place). Financial considerations will also factor into your decision to return to work.
- Navigating transition & change
In the time leading up to a return to work, a number of factors along with a range of emotions will come into play. It is important to acknowledge that the job interruption you have experienced has been unexpected, and unwelcome. As you begin to think about returning to work, understanding the stages of transition can be helpful.
- Psycho-social factors & returning to work
Returning to work is a process, which means it can take a long time. Your social and mental well-being are important parts of that process.
- Vulnerable times
Dealing with a brain injury can result in a range of challenges that may leave you feeling vulnerable in ways you have not experienced before. On those days when you may be feeling defeated or impatient with the fluctuating pace of your recovery – how can you not be fearful about the uncertainty of it all? What does it mean? Where will this end up? How can you guard against discouragement?
- Ending the employment relationship
If a person is not able to return to work, it’s important to end the employment relationship respectfully and with compassion.
Additional information related to returning to work
- Medical information for employer
Medical professionals have an important role to play in terms of providing information that will assist the employer in reviewing and assessing options that may be available in the accommodation process. It is important to ensure that any medical information being requested, collected, shared and stored is done so in a legal manner. Be sure to contact your specific Human Rights Office for further information. It is important to note that in some cases, it has happened that employers, and others, have requested personal medical information from either the employee and/or the medical professional(s) that went beyond what was required to support a request for job accommodation.
When speaking to an employee and/or requesting medical details that it is done so respecting the rights of the employee with respect to disclosure of information in the accommodation process. In addition to this, any privacy laws and confidentiality agreements with respect to medical information must be upheld at all times. The term “disclosure” is often misinterpreted when used in reference to The Duty to Accommodate. A specific set of information must be disclosed by the employee to the employer when reviewing the accommodation requirements. However, there are limits placed around the details to be disclosed.
Generally, the employer does not have the right to know a person’s confidential medical information, including the cause of the disability. With this in mind, the focus should always be on the functional limitations associated with the disability. Information must be relevant and appropriate. This can become confusing. It can also result in a human rights complaint and/or legal action being taken against the employer if not handled correctly. If you are in any doubt about what you can ask or request, it is important to take the time necessary to contact your Federal, Provincial or Territorial Human Rights Office.
The following is a guideline for medical information that can be requested. It can be used to support an accommodation request. As legislation may vary between jurisdictions and location, be sure to contact your specific Human Rights Office for further information.
The type and scope of medical information is typically limited to the following:
- That the person has a disability
- The limitations or needs associated with the disability
- Whether the person can perform the essential duties or requirements of the job, including health and safety considerations, with or without accommodation
- The type of accommodation and modifications that may be needed to allow the person to fulfill the essential duties or requirements of the job
- Regular updates about when the person expects to return to work or, if available, the expected duration of the accommodation
- Undue hardship
The duty to accommodate is not limitless. The duty to accommodate ends when an employer reaches the point of undue hardship. An employer can only claim undue hardship when adjustments to an employee’s job requirements and/or adjustments to policy, practice, or physical space would be prohibitively expensive or create health or safety risks.
Accommodating someone with a disability is seldom as expensive or difficult as is sometimes imagined, many cost nothing at all.
There is no standard formula or precise legal definition of undue hardship. Each situation should be viewed as unique and assessed individually. The point of undue hardship varies for each employer and for each accommodation situation. The larger the organization, the more likely it is to have a range of options to accommodate an employee.
If an employer claims undue hardship as a reason not to accommodate an individual with a disability, it must be supported with facts. It is not enough to claim undue hardship based on an assumption or opinion, or because there is some cost involved. Employers must be able to substantiate the nature and extent of the hardship. They should also be able to show that all reasonable means of accommodation have been exhausted.
To satisfy a claim of undue hardship on the basis of cost, the financial impact of the accommodation would typically have to be so great that it would either change the essential nature of the organization’s operation, or it would substantially impact the employer’s financial viability.
Employers should be innovative, practical, and timely when considering accommodation options. If an individual’s need for accommodation can be met without imposing undue hardship on the employer, a refusal to accommodate is not justified.
- Accommodation definitions
Accommodation is an arrangement that eliminates barriers to ensure that employees who are otherwise able to work are not excluded from doing so based on a protected ground. Disability is a protected ground.
Disability means any degree of physical disability or mental disability, regardless of cause or duration, as defined and interpreted pursuant to Federal, Provincial, Territorial Human Rights legislation. A basic definition of disability includes conditions that have developed over time, those that result from an accident, or have been present from birth. It can be permanent, temporary or episodic, and includes physical, mental and learning disabilities. Disability can steadily worsen, remain the same, or improve. A disability can be visible or invisible.
Disclosure means to make known; public. This term is often misinterpreted when used in reference to the provision of accommodation in the workplace. For the purpose of this definition, disclosure is used in a limited form. A specific set of information must be disclosed by the employee to the employer when reviewing the accommodation requirements. However there are limits placed around the medical details to be disclosed, which includes only relevant and appropriate information.
Duty to Accommodate is the legal duty to accommodate an individual’s needs based on a Protected Ground. Privacy, confidentiality, comfort, autonomy, individuality and self-esteem are important factors as to whether an accommodation maximizes integration and promotes full participation in society. Accommodation encompasses individual self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. When individuals are marginalized, stigmatized, ignored or devalued, this integrity is harmed.
Employee Rights are part of Canadian Human Rights Legislation. These rights are entrenched, and violation of these rights may result in a complaint against the employer to the applicable Human Rights Office and/or legal action.
Reasonable Accommodation is an Accommodation that provides for the inclusion of the employee, and their ability to perform the job, that does not create Undue Hardship for the employer.
Workplace Accommodation refers to a wide variety of tools that address disability related barriers in the workplace. Job accommodations can modify equipment; the working environment and conditions and/or job duties.