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Mastering the ins and outs of the duty to accommodate under human rights legislation is hard. In fact, some would go so far as to say impossible. It’s no wonder this topic has floated to the top of the list of challenges faced by HR practitioners. I’ve given this some thought and come up with a number of rules that I feel should be followed in all cases.
Remember! The Ontario Human Rights Commission has a ton of incredibly helpful information relating to accommodation in the workplace on their website. It’s a valuable resource and is often overlooked. Another valuable resource? A really good employment lawyer!
Don’t bury your head in the sand
Pretending nothing is wrong isn’t going to help you. Our neighbours to the south call it “constructive knowledge”. Up here in the Great White North we take a more casual approach and hold you to what you know “or should have known”. Turning a blind eye to patterns of behaviour that would alert a reasonable person to the fact that additional inquiries should be made will not help you. Some of the more common flags would be:
- Performance issues when there had been none in past, especially where there has otherwise been no changes to the employee’s terms of employment (i.e. same position, same manager, etc).
- Attendance problems (absences and tardiness), especially if unjustified or unanticipated. Where absences and/or tardiness begins occurring regularly on Fridays and Monday, this isn’t just a flag – it’s a red hot one!
- Changes to interpersonal dynamics in the workplace, particularly if they are negative (broadly speaking, mood and/or personality changes).
Concerns should be heightened if any of the above manifest themselves where there have otherwise been no changes to the employee’s workplace (i.e. same position, same manager, etc).
Talk to the employee. Share your observations and let them know your concerns. Ask if there’s anything the matter and whether they need help. Point them to your accommodation policies (which, depending on the size of your organization, are or will soon be required under the AODA!) and encourage them to come to you if they require support.
Take the bull by the horns. Whether the employee self-discloses the need for accommodation or you suspect a need, be the one to ask the questions. Ask a lot and ask them frequently.
Once a need for accommodation has been identified, it’s important for you to understand the employee’s functional limitations. Basically, what can the employee do without help, what can the employee do with help, and what the employee can’t do. Understand what help the employee requires and how you can best provide that help. Ask how long the accommodation will be required and when you can expect the employee to be back up to 100%. Ask your employee to update this information frequently.
Park the skepticism
Employees are entitled to request accommodation. Employers must assume such requests are made in good faith and proceed on that basis. Although I appreciate that many are the times when employees request accommodation when they are being performance managed, there is no benefit to challenging the legitimacy of their request at the outset. Or at any other time during the accommodation process. Approach all requests for accommodation the same way.
Don’t let yourself be bullied
Employers get to decide whether a request for accommodation is legitimate based on all of the evidence provided by the employee and his/her physicians. Further, employers get to decide the best way to accommodate, so long as the proposed accommodation meets the employee’s needs. Ask for detailed supporting documentation, establish deadlines, insist that the documentation be updated at regular intervals, and hold the employee to these expectations.
Don’t confuse your disability insurer’s determination of disability with your own
Many employers offer short- and long-term disability coverage under group-insured employee benefit plans. Those plans have very specific definitions and thresholds an employee must meet in order to be entitled to benefits under the plan. When an insurer determines that the employee does not meet those definitions and thresholds, all they are saying is that the employee isn’t entitled to benefits under the terms of the plan.
Whether an employee should be approved for a leave of absence from employment is a separate (though linked) determination that must be made by the employer. Where an employer agrees to grant such leave, it will be unpaid, unless the employee asks (and the employer agrees) to apply any accrued vacation.
The most common example of a leave being approved is when an employee chooses to appeal the insurer’s determination that they are not eligible for benefits. But even where an employee decides not to appeal the decision, or has exhausted the appeal process, an employer must still make its own determination of whether an employee is fit for work. The same process should be followed as any other request for accommodation.
Related blogs in this series:
- # 5 Forgetting that common law principles also apply
- #4 Discriminatory grounds such as family status, age, marital status, etc. that deal with the duty to accommodate
- #3 Contracts and Employment Agreements
- #2 Mental health or physical disabilities that deal with the duty to accommodate
- #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice (Part 3)
- #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice (Part 2)
- #1 Termination pay, termination notice, termination with or without cause and pay in lieu of notice
- Where HR Professionals Get It Wrong: Employment Counsels’ Collective Musings
About the Author: Toronto Employment Lawyer Adrian Ishak’s practice focuses on all aspects of employment law including employee relations, terminations, wrongful dismissals, employment contracts, and employment policies. He provides strategic counselling on a number of human resources, privacy and human rights issues. With a joint Ontario and Québec call and with experience in both jurisdictions, Adrian guides his clients through employment standards matters, pay and employment equity, and human rights obligations in Canadian common law and Québec’s civil law jurisdiction. Adrian represents clients in both English and French.