Let’s say you are an employer. Consider a scenario where one of your employees has suddenly been showing up late, being absent altogether, insubordinate, or emotionally unstable, all of which have contributed to performance issues at work.
At what point, before disciplining or terminating that employee, is an employer required to ask them whether they have a disability that may need to be accommodated? To answer this question one must look into the ‘duty to inquire’.
Definition of The Duty to Inquire
“Where an organization is aware, or reasonably ought to be aware, that there may be a relationship between a disability and someone’s job performance… the organization has a “duty to inquire” into that possible relationship before making a decision that would affect the person adversely. This includes providing a meaningful opportunity to the employee… to identify a disability and request accommodation.” – Ontario Human Rights Commission’s Policy on ableism and discrimination based on disability, 2016
Krieger v. Toronto Police Services Board, 2010 HRTO 1361 (CanLII) – A police officer, who faced a traumatic incident with a person carrying a handgun at a mall, later overreacted while encountering an intoxicated person at a restaurant. He was terminated a few months later because of the overreaction. The Tribunal found that the employer believed that the officer could be experiencing Post-Traumatic Stress Disorder, but took no steps to accommodate him. The adjudicator subsequently reinstated the officer.
Wilson v. Transparent Glazing Systems (No. 4), 2008 BCHRT 50 (CanLII) – The employee injured his back in a car accident and began taking medical marijuana for the injuries resulting from the accident. The employer knew about the accident. The employer received a complaint that the employee took medication that affected his work, and terminated him. The Tribunal held that the employer, knowing about the accident and the resulting injuries, should have inquired into whether the medication was for a disability.
Mellon v. Human Resources Development Canada, 2006 CHRT 3 (CanLII) – An employee who took a sick leave and later experienced panic and anxiety attacks in the workplace did not have her contract renewed by her employer. The adjudicator noted that the employer should have recognized the “red flag” and at least inquired after noticing the employee’s change in performance and attitude.
If an employee starts acting uncharacteristically and/or experiencing performance issues at work, an employer may have a duty to inquire as to whether the employee is dealing with a disability or some other factor that requires accommodation. This duty must be discharged prior to disciplining or terminating the employee.
It is wise for employers to be proactive in their approach to wellness and disability in the workplace. The following are suggestions for how to do so, which work in conjunction with the duty to inquire insofar as they nurture a better relationship between employer and employee:
- Introducing a dedicated counselling service or helpline for disability issues;
- Introducing a wellness program and disability benefit plan;
- Training for all managers on disability issues;
- Fostering a culture of support and openness at the workplace; and
- Participating in initiatives such as Bell Let’s Talk.
If you have any questions or concerns relating to the duty to inquire, or disability in the workplace in general, contact us now. To arrange your free confidential 30-minute phone consultation, make sure to contact us today.
About the Author: Miguel Mangalindan is an Employment Lawyer and Senior Associate at Monkhouse Law where he practices Employment, Human Rights and Disability Insurance Law.