Amendment to the AIAOD: New obligations for the rehabilitation of your employees

As has been the case for the past few years, the CNESST applies the employer’s duty of reasonable accommodation in cases of consolidated occupational injury with permanent impairment or functional limitations. From now on, the employer and the worker will have to collaborate in the process, and it will have to be rigorously applied.

In fact, if no rehabilitation measures can make your employee capable of performing his or her job or an equivalent job following the determination of the functional limitations, the CNESST will determine if suitable employment exists in your organization. This decision will be made with your cooperation and that of the worker.

The CNESST will have the right to require you, as the employer, to provide the information and documents necessary to determine the worker’s capacity.

To this effect, the employer will have to produce a detailed report of his jobs including:

– The physical demands of these jobs
– Their possible availability
– The possibilities of adapting and reorganizing the work and, if applicable, the provisions of the collective agreement

As a result, an employer can no longer simply say that it does not have a suitable job to offer an employee within its establishment. It must actively participate in good faith, in collaboration with the rehabilitation counsellor, to accommodate its employee, promote the maintenance of the employment relationship and determine suitable employment within its establishment. This duty to accommodate is subject to a showing of undue hardship. This undue hardship applies when the means to accommodate the worker have been exhausted and only unreasonable or unrealistic accommodation options remain.

This major change consists of the possibility for the CNESST to apply a financial penalty in the event of the employer’s failure to cooperate. This penalty is equivalent to the income replacement indemnity to which the worker could have been entitled during the period in which the employer failed to cooperate and may extend up to one year.

For example, if an employer refused to cooperate for a period of 3 months in the case of a worker who had a gross annual salary of $50,000 with a spouse and two minor children in his care, the employer could be fined nearly $10,000.

Do not hesitate to contact our team of OHS claims management consultants. Depending on your needs, we can assist you in the management of certain specific files or take over the complete management of your OHS files.