Before I get into the meat of this I’d like to make clear that I am not asking for legal advice - at least it is not my intention. I also ran this past GFactor just to make sure it passed the smell test and he cleared it.
I’m trying to find any act, code or statute applicable to Manitoba that allows an employer to to give WCB claimants preferential treatment over private insurance claimants in terms of finding/assigning workplace accommodation.
I’ve gone through the WCB act and haven’t been able to find anything.
If such a thing does exist can someone please point me toward it?
At our workplace the employees pay for their own short-term and long-term disability insurance. The employer pays, of course, the WCB premiums.
So if an employee is at work and takes a forklift to the back the employee would go on WCB, if the employee crashes his motorcycle into a tree on his off-time he goes on the private STD/LTD.
I’m unsure what is meant by “preferential accommodation.” Do you mean that the employer will accommodate the WCB claimant, but not the STD/LTD claimant?
Using the example I made up above if the guy that got hit by the forklift (WCB claim) and the guy that crashed his motorcycle (STD claim) are both able to return to work with a “sit-down work only” accommodation and there is only one “sit-down” position available it will be the WCB claimant that is given priority.
I need to find out if that is supported by any legislation and I can’t seem to find anywhere that says it is or that says it isn’t.
Please let me emphasize I am not asking for legal advice. If there is such a statute (replace with correct word if statute is wrong) I’m hoping someone can point me toward it - for example, “Hey Zeke check out the Worker’s Compensation Act between sections 4 and 8. It’s in there, good luck.”
Your answer would likely be in the various Human Rights Codes (provincial or federal, as necessary) and in the common law (the legal cases) that helped shape and define the rules, rather than in any provincial employment statute. You may wish to consult the Human Rights Codes of Manitoba or Canada.
If I had to guess at your answer, I’d guess that if there is only one sit-down position; the employer would have to create another. (I’m assuming that both the WCB claimant and the STD/LTD claimant do approximately the same job.) As a general rule, the employer must make “reasonable accommodation to the point of undue hardship,” or a claim of discrimination under the protected ground of “disability” in a Human Rights code can apply. Thus, in the situation you put forth, it would seem that the employer cannot favour the WCB claimant over the STD/LTD claimant–the employer would have to treat each equally. Giving a sit-down desk position to each claimant should not prove an undue hardship to the employer; and if the employer balks at treating the STD/LTD claimant the same as the WCB claimant, then the STD/LTD claimant may well have a legitimate complaint that he or she can take to the applicable Human Rights Commission. However, it is impossible to say based on these brief and general facts, and it is possible that the actual specific facts could be interpreted differently.
This is a very simplistic and general overview, and there is much more to the matter than just this (believe me!). For legal advice specific to your situation, consult a practitioner licensed to practice in your jurisdiction. But let’s see if this answers your question for now.
That helps a whole lot. I honestly hadn’t thought of looking to the Human Rights Code :smack: and I was starting to pull my hair out.
I appreciate the suggestion and I understand that it is limited, by definition, by the scarcity of facts but I had to use a hypothetical with very few facts so as not to ask for advice.
This kicks ass and will hopefully prove fruitful. Thank-you again!!!
As an aside, I find that when questions involving fairness in some degree arise out of an employment matter, the answers can often (but not always) be found in the Human Rights codes. Most helpfully, some of these codes have parts that address discrimination specifically in employment. Note that I say “some of these codes” because I haven’t read every Human Rights code in Canada, so I cannot say if they all have employment sections. But so far, they seem to.
