Accommodation After Injury: How Employers can Mitigate Liability Risk

Christy Gendy

Workplace injuries are a reality in many industries, especially in construction, manufacturing, and other physically demanding work environments. While accident prevention is key, what happens after the injury is just as critical to addressing legal risks. When employers fail to accommodate an injured worker, or try but give up too easily on finding a solution, they risk serious legal consequences, including claims of discrimination, constructive dismissal, or wrongful termination. In Ontario, you must accommodate an injured or otherwise disabled worker up until the point of undue hardship, but many employers fail to understand what this requires.

Gladiator recently won a settlement in a case where a long-term injured worker was provided with written training manuals for a new job he wasn’t familiar with, to accommodate his injury. The client was ultimately fired after failing to learn the new role, the employer believing themselves to have fulfilled the duty to accommodate. However, these minimal efforts were not sufficient; the client deserved to participate in a collaborative process and to receive real training if he was to transition to a new role.   

Accommodation is a Legal Obligation, Not a Courtesy

Under Ontario’s Human Rights Code, disability, including temporary or permanent injury, is a protected ground. Employers are legally required to accommodate across all aspects of employment: job duties, scheduling, environment, and expectations. Accommodation isn’t about creating a perfect solution. It means taking all reasonable, proactive steps to support the employee’s return to work unless and until undue hardship can be objectively demonstrated. 

Undue Hardship: What It Is and Isn’t

The threshold for undue hardship is high. Only three factors are considered under Ontario law:

1. Excessive costs that threaten business viability

2. External funding

3. Serious health and safety risks that cannot be appropriately mitigated 

Oftentimes, employers mistakenly believe that a minor inconvenience, productivity or income loss qualifies as undue hardship, but these do not qualify. Accommodations must go beyond minimal effort or gestures. They must be meaningful, consistent, and guided by medical evidence and a collaborative process. 

How to Avoid Costly Mistakes 

 To meet the duty to accommodate and avoid legal risk, employers should: 

• Act Early: Don’t wait for a formal request. If you’re aware of a possible disability or injury, begin the accommodation process right away.

• Communicate: Maintain open, respectful dialogue with the employee throughout. The process should be collaborative.

• Request Relevant Information: Ask for medical information about functional limitations to guide appropriate support.

• Create Individualized, Flexible Solutions: Accommodation is not one-size-fits-all. Plans should be tailored to employees’ specific needs and circumstances.

• Document the Process: Maintain records of efforts, meetings, decisions, and accommodations offered.

• Avoid Assumptions: Decisions must be based on objective evidence, not assumptions about a disability or what an injured worker “should” be able to do.

Going Beyond Just Compliance

Creating an inclusive workplace isn’t just about avoiding lawsuits. It’s about building a workplace culture that values health, dignity, and long-term sustainability, for both the company and its employees. Proactive accommodation isn’t just legally beneficial, it’s a key to a healthier and more productive workforce.

Your job should be a place where:

• Injured workers are supported, not sidelined.

• Accommodation processes are about more than just compliance.

• Managers are equipped with the knowledge to meet and exceed legal obligations.

If you're an employer unsure how to accommodate an injury or a worker concerned about how you've been treated after returning to work, Gladiator can help.

We offer legal support and advocate for broader policy solutions.

Call (647) 973 - 7759 or visit www.mygladiator.ca