I Have to do What???

A fundamental right of all employees in Ontario is to be provided with a safe and inclusive work environment that allows an employee to fully participate in meaningful work reflective of their skills, experience, and position.    When an employee is faced with circumstances that hinder their ability to perform their regular duties, often due to illness, injury, or other circumstances beyond the employee’s span of control, an employer is required to fully investigate how best to support the employee.   This may trigger the need to explore position modifications and/or restrictions referred to as a duty to accommodate.      

The duty to accommodate is not optional and an employer must take reasonable steps to: 

• ensure that their workplaces are inclusive and allow all workers to participate fully.    
• develop and implement a reasonable accommodation plan in alignment with the protected grounds of discrimination as per the Ontario Human Rights Code.   

When is a duty to accommodate triggered?

• When an employee expresses their request for accommodation; this may be in the form of a written or verbal request that is made to the employer. 
• If an employee does not expressly request accommodation, an employer may still have a duty to explore accommodation when an employer becomes aware of circumstances that cause concern for safety of the employee or others. 
• An employer does not have the right to request personal medical information or medical diagnosis of an employee.

Example: 

Jane works as a Sales Associate at ABC Company and has been employed with the company for the past 5 years.    Jane is viewed as a reliable and conscientious employee and has consistently received positive performance reviews along with merit increases and annual bonuses for exceeding her sales targets.   Jane’s manager has noticed over the past couple of weeks that Jane has uncharacteristically reported to work late with no advance notice or explanation, missed team meetings and when she does attend, Jane will seldom participate or engage in the discussions or brainstorming sessions.    Recently, Jane has left work at mid-day and will often look disheveled.

In the above example, Jane has not expressly requested accommodation; however, her demeanour has noticeably changed, and this has impacted her performance to the extent that it is noticeable to the employer.    This situation requires an employer to, at minimum, have a confidential conversation with Jane.   The conversation should be approached from a perspective of care, respect, and concern for Jane’s well-being.   The employer can share their observations and concerns with Jane and offer Jane the opportunity to let her employer know whether there are circumstances that are impacting her ability to competently perform her work function. 

The intent of the conversation is not to coerce Jane to reveal sensitive information pertaining to her health, however, if there are health concerns, the employee should advise the employer that they are seeking medical treatment, and that the treatment is causing the changes in Jane’s behaviour. Disclosure of the medical condition is not required.   At this point, the employer has a duty to inquire by asking the employee how the employer may support them.    Subject to what, if anything is shared by the employee, the employer may wish to better understand how they can support Jane such that it can ensure that Jane is able to continue to participate safely and effectively in the workplace.  If the employee refuses or resists the notion of accommodation, the employer has a responsibility to let Jane know that they are concerned for her well-being and that if the issues the employer has observed continue, it may become necessary to address it as a performance concern.    Jane’s position is not one that carries significant safety concerns for herself or those with whom she works, however, if the position did have a higher-than-normal degree of risk to safety ie heavy equipment operator, driver, working at significant heights, etc., the employer would need to satisfy itself that the changed behaviours did not pose any safety concerns for Jane or any other employees in the workplace.

 

Steps an employer needs to take to satisfy its duty to accommodate: 

1. Duty to inquire.    Collect relevant information from the employee by sharing observations and concerns regarding the employee’s performance at work.
2. Advise the employee that as an employer, they are concerned and wish to offer support.
3. If an employee reveals that they are undergoing medical treatment, the employer may ask the employee if accommodation is needed and for what duration.   An employer may not ask for specific details pertaining to the medical condition but they may need to understand how best to accommodate in the workplace assuming the employee is able to continue to work, expectations for recovery, ability to perform their job duties, and capabilities for alternate work.
4. Once the employer has an understanding of the employee’s needs, the employer must prepare a written accommodation plan that outlines the details of the accommodation, the period of time that the accommodation will be in force, when the accommodation will be reassessed, and any other details agreed to between the employee and the employer.
5. The employer should then ask the employee to share the accommodation plan with their treating physician for input and approval.  Any costs incurred by the employee to have the accommodation plan reviewed by their physician should covered by the employer.  The employer may wish to indicate the maximum amount they will reimburse by referencing the current Physicians Fee Guide.