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Duty to Accommodate

Accommodating Disabilities in the Workplace

When an employee notifies the employer of a need for accommodation based on a protected ground in the human rights legislation (often a disability) that impacts his or her ability to work, the employer is required to accommodate that condition up to the point of undue hardship.

How To Fulfill Duty to Accommodate

To fulfill its duty to accommodate, the employer may be required to make changes to the physical environment the employee’s work duties or work schedule, or to workplace policies, standards, or procedures, in order to ensure that they do not negatively impact the employee. For example, the employer may be required to install a wheelchair ramp in the workplace, eliminate the requirement of the employee to carry heavy boxes, or allow the employee to work from home. The goal is to allow the employee to be able to perform his or her work in a similar manner to other employees who are not experiencing the same disadvantage.

Employee Requirements

The employee is required to cooperate with the employer’s efforts and provide the necessary information for the employer to determine what accommodations are required. We advise our clients on what information an employee must provide to the employer and what information can be withheld.

We also advise employers and employees in requesting and responding to requests of accommodation.

The duty to accommodate may also arise in situations involving unions or its members, landlord/tenant issues, or denial of service to customers, etc. We advise clients with respect to all human rights related matters.

I have an employee who seems to be struggling with anxiety lately and it is affecting their performance at work. What should I do?

In cases where an employer suspects that an employee may be suffering from a mental disability (such as clinical anxiety) or physical disability that is affecting their performance at work, the employer has an obligation to investigate even if the employee has not requested specific accommodation. This is called the duty to inquire.

If an employer knows about, or notices obvious signs of, a mental or physical condition that is interfering with an employee’s job performance, the employer is required to take certain steps to address the situation.

Here are some steps you can take:

  • Gently raise the performance concerns with the employee. Be prepared to provide specific examples where their performance has been lacking. Give the employee a meaningful opportunity to explain their behaviour. Let them know the employer would like to support them and is open to considering any requests for accommodation that arise due to a disability.
  • Know your policies. If you have a human rights or accommodation policy in place, be sure to follow it. Consider providing a copy to the employee. If you don’t have a policy in place, give us a call and we can work with you to draft and implement a policy that works for your organization.
  • If you decide to set up a more formal meeting, try not to ambush the employee. Be respectful. Express sympathy by acknowledging what they’re going through but avoid using phrases like “I know how you feel”, “I’ve dealt with anxiety too”, or “you just need to push through it”.
  • Include only the minimum number of people needed at the meeting. The employee’s supervisor and a HR representative are usually helpful individuals to involve, unless either person would make the employee more uncomfortable. Take notes of the meeting and assure the employee that everything discussed will remain confidential to the greatest extent possible.
  • Encourage the employee to take advantage of any benefits, counselling, or an employee assistance program (“EAP”) that may be available to them.
  • Follow up. The employee may not be immediately aware of the disability or may not feel comfortable opening up regarding their disability in the first conversation.

The extent of the duty to inquire will depend on the facts of each case. Our team at Carbert Waite can help you navigate the steps you should take to discharge your duties to inquire and accommodate adequately and appropriately.

When can I ask for medical documentation from an employee?

If you have a conversation with the employee and they ask for assistance or accommodation, you may want to consider asking for medical documentation. An employer is entitled to ask for medical documentation if it is reasonably necessary to confirm whether a disability exists and how it restricts the employee at work. If the employer’s request is reasonable, the employee has an obligation to provide the information. 

Employers should limit their requests only to information that will inform what kind of accommodations can be put in place for the employee. Employees are typically not required to provide full medical charts, test results, or medication details unless the circumstances call for more extensive and complicated accommodations.

What happens if the employee refuses to cooperate about the need for accommodation?

Even where the employer reasonably suspects a disability and makes the appropriate inquires about the need for accommodation, the employee may refuse to cooperate. They may decline to provide you with any information or medical documentation or deny they are struggling with a problem. 

An employee has right to keep their medical information private. However, if the employee’s exercise of that right prevents the employer from being able to accommodate them, the employer’s obligations often end there. An employee is not entitled to demand accommodation without first providing evidence of a disability. Under these circumstances, the employer is entitled to address the performance concerns as it sees fit, including by imposing disciplinary measures.

Alternatively, an employee may refuse to cooperate by rejecting reasonable accommodations proposed by the employer. If the employee has requested accommodation based on a disability, provided medical information to substantiate the disability, but then refuses a proposed accommodation that is suitable to address the disability, the employer is similarly entitled to use disciplinary measures to address any performance concerns. The employer has a duty to provide reasonable accommodation – not perfect or instant accommodation. Employees seeking accommodation have an obligation to consider reasonable options even if the options are not the ones the employee suggests or prefers.

However, what is considered “suitable” or “reasonable” accommodation can sometimes lead to disagreement between the parties and is often the subject of human rights complaints. As much as possible, staying flexible and maintaining open, respectful channels of communications can ensure that the needs of both the employee and employer are being met and that disputes are avoided.

At Carbert Waite, we can help you navigate these conversations and provide guidance on the scope and extent of the duty to accommodate in your workplace.