Abbreviations
| ABA Journal | American Bar Association Journal |
| B.C.C.A.A.A. | British Columbia Collective Agreement Arbitration Award |
| B.C.C.H.R. | British Columbia Council of Human Rights |
| B.C.H.R.T. | British Columbia Human Rights Tribunal |
| C.A. | Court of Appeal |
| C.H.R.D. | Canadian Human Rights Tribunal Decisions |
| C.H.R.R. | Canadian Human Rights Reporter |
| C.H.R.T. | Canadian Human Rights Tribunal |
| D.T.E. | Droit du travail express |
| F.C. | Federal Court |
| F.C.A. | Federal Court of Appeal |
| J Occup Environ Med. | Journal of Occupational and Environmental Medicine |
| J Occup Health Psychol. | Journal of Occupational Health Psychology |
| L.A.C. | Labour Arbitration Cases |
| O.J. | Ontario Judgments |
| Q.L. | Quick Law |
| Queen’s L. J. | Queen’s Law Journal |
| R.J.D.T | Recueil de jurisprudence en droit du travail |
| R.J.Q. | Recueil de jurisprudence du Québec |
| R.S.Q. | Revised Statutes of Quebec |
| S.C.R. | Supreme Court Reports |
| S.A. | Statutes of Alberta |
| S.A.G. | Sentences arbitrales; griefs |
| S.C. | Statutes of Canada |
| S.C.O | Superior Court |
| S.C.O. | Superior Court of Ontario |
| Sask Bd. of Inquiry | Saskatchewan Board of Inquiry |
| T.A. | Tribunal d’arbitrage |
| T.D.P.Q. | Tribunal des droits de la personne du Québec |
Introduction
In many complaints to the Canadian Human Rights Commission, a dispute arose between employer and employee when the employee returned to work after a prolonged absence, such as sick leave, a workplace accident or maternity leave. Management of a return under such circumstances poses many challenges for the parties involved. A fragile balance must in fact be maintained between the management rights of the employer and the employee’s rights to equality, privacy, dignity and physical integrity.
After a lengthy absence, employees often need workplace arrangements to be made so that they can return to work. Canada’s human rights legislation, which protects individuals against discrimination based on disability, pregnancy or marital status, requires an employer to do everything reasonably possible to facilitate the continued employment of an employee who has had to be absent from work for such reasons. Employees and, where applicable, their unions also have a part to play in seeking accommodation and an obligation to cooperate in the process in good faith. Reconciling the interests of the parties is not always easy. Over the last 20 years, case law concerning the duty to accommodate has developed at a very rapid pace and has had an undeniable impact on the management of long-term absences. With the increasing cost of absenteeism and resulting complex obligations , employers and employee representatives are increasingly well advised to adopt strategies for the management of disabilities that will help resolve the problem at its source and reconcile the interests at stake.
The purpose of this paper is to describe how matters stand in relation to employees returning to work after a prolonged absence. The issues raised in our research may be used to develop guidelines for employers to facilitate efficient management of absences that respects the fundamental rights of employees. The first part of the paper surveys the characteristics of long-term absenteeism in Canada. The second addresses the means available to employers for monitoring the state of an absent employee’s health, while respecting his or her fundamental rights. The third deals with protection from discrimination provided by the Canadian Human Rights Act and the resulting duty to accommodate. The fourth gives examples of accommodation measures required by the courts in cases of drug or alcohol dependence, psychological illness, pregnancy or family obligations. Lastly, the fifth presents a series of measures to facilitate the efficient management of long-term absenteeism.