Canada: The Duty To Inquire: The Problem With Turning A Blind Eye

You have heard this scenario before: An employee is constantly showing up late (or not showing up at all), being insubordinate or argumentative, or worse - completely unmanageable, so the employer then dismisses the employee. The employee then files a grievance or a human rights complaint stating that he or she suffers from a disability and the dismissal was discriminatory. Next thing you know, the employer is liable for failing to accommodate the employee's disability-despite the fact that the employee failed to mention that he or she suffered from a mental illness. Even though the employer did not know that the employee required accommodation, it was determined that the employer "ought to have known".

The first step in avoiding this finger-pointing and scolding is to understand "disability". According to human rights legislation, disability is a ground of discrimination. Mental health, addictions, temporary physical limitations such as a broken arm, chronic health concerns, episodic health issues such as multiple sclerosis or HIV are all considered to be disabilities regardless of whether they temporarily or permanently affect an individual. 

The second step in preventing a discriminatory termination or disciplinary action is to understand the concept of the "duty to inquire". Typically an employee has the responsibility to inform the employer that he or she requires accommodation because of a disability. When the employer is aware, or reasonably ought to be aware, that a disability is negatively affecting an employee's work performance, the employer has a duty to inquire about the situation and accommodate the disability to a point of undue hardship. 

It might seem counterintuitive. A person's state of health and wellness is traditionally considered personal information and it would be invasive to inquire. To be clear, an employer does not have the right to know what specific disability the individual has, although that may come to light; the employer only needs to know how to accommodate the employee. An employer will not be sheltered from liability where it turned a blind eye to tell-tale signs of disability. 

What is the "duty to inquire"?

Based on current case law, the scope of the duty requires that an employer:

  • Obtain all relevant information about the employee's disability. This includes information about the employee's current medical condition, prognosis for recovery, ability to perform job duties, and capabilities to perform alternate work. 
  • Consider whether a disability could be affecting a long-term employee's decision to resign. If so, an employer should discuss the reasoning behind the decision and remind the employee of the options and benefits available.
  • Consider the language used by an employee when offering a resignation or otherwise describing his or her ability to perform. For example, language such as: "I'm unable to cope with the workload"; "I don't know what I was thinking"; or "I didn't feel as though I had any alternatives" may be red flags that the employee was not capable of making a reasonable decision at the time. 
  • Beware of a change in an employee's behaviour. Where an employee does something that is "so outrageous, out of character or unexpected" that a reasonable person would suspect that he or she is experiencing symptoms of a disability, ask about it. 
  • Review the benefits packages and alternatives to resignation available when an employee who may have a disability tells you they want to resign. Ensure that the employee is aware of long-term or short-term disability packages, provide him or her with the employee assistance line, remind him or her that health coverage includes counselling, or provide details of whatever form of assistance may be available. 
  • Consider an employee's request to rescind a resignation and return to work as a request for accommodation. 
  • Proactively intervene in other employee's negative comments or harassment directed at an employee with a disability. For example, if an employee frequents the washroom because of a gastro-intestinal ailment, is often absent from work or is, on occasion, less productive at work due to depression, do not tolerate other employees making negative comments. It may lead to differential treatment, exclusion, and an overall toxic work environment. 
  • Require that an employee that is unmanageably disruptive, or substantially unable to perform the job, take a temporary leave of absence to obtain the necessary medical information to allow the employer to determine how best to accommodate the employee.
  • Be flexible. If possible, do not rush the employee back to work. There are as many solutions as there are circumstances, so try to come up with an accommodation strategy that suits both the employer and the employee. 

The duty to accommodate does not include:

  • Accommodation beyond the point of undue hardship. Where there is evidence specific to the harm that the employee is causing to the workplace and the risks of continuing to employ the individual would not be reduced to an acceptable level by accommodation, the employer is justified in terminating the employee without triggering human rights legislation.
  • Undue hardship arises where an employee is totally incapable of performing the job for a prolonged and indefinite period of time. The employer's duty to accommodate ends where the employee is no longer able to fulfill the basic employment obligations.
  • An employer may discipline an employee for cause when there is no nexus between the poor behaviour or performance and a disability.
  • An employer is entitled to sufficient, legitimate, and up to date medical information in order to justify medical leaves and accommodation. 
  • An employee is entitled to reasonable accommodation – not perfect accommodation, or accommodation of the employee's choosing. For example, an employer does not have a duty to create a new job for an employee with a disability. 
Why inquire?

Beside the obvious - that an employer could be held liable for failing to accommodate a disabled employee to a point of undue hardship - failing to inquire into a person living with a disability could contribute to a toxic work environment. No one wants this. Productivity may suffer, other valued employees may leave, and employees may generally contribute less to the culture of the workplace. 

Further, it is possible that all the employee needs, to be a productive member of your team, is to know that there is room, through the accommodation process, for that employee in the workplace.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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