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Searching for an accommodated solution: What role does the employee with a disability play?
It is now settled law that the human rights duty to accommodate is comprised of both a procedural and substantive element, both of which are subject to the standard of undue hardship. A failure to meet either of these duties amounts to discrimination. (ADGA Group Consultants Inc. v. Lane [2008] O.J. No. 3076.)
Most often played out in the disability-employment context, the procedural duty to accommodate is triggered once the employer knows or ought reasonably to have known that the employee suffers from a disability. The content and scope of the procedural duty includes gathering pertinent information, asking relevant questions, considering (usually medical) information gathered and engaging in discussions with the employee when crafting an appropriate accommodation.
While the accommodation process is a multi-party one, the procedural duty lies largely with the employer, given its knowledge and control over the workplace.
But the employee, and the Union if one exists, also have a role to play in this process if it is to lead to a successful result.
The employee with a disability is required to:
- Inform the employer, preferably in writing, of her or his accommodation needs, which in most cases will trigger the employer’s procedural duty of accommodation.
- Answer the employer’s questions regarding any limitations and restrictions and provide requested medical information from his or her health care professionals so long as reasonably necessary.
- The employee is NOT however, required to discuss these medical needs, limitations or restrictions with anyone in the organization other than those directly involved in the accommodation process.
- In some cases, the employee may be asked to undergo an Independent Medical Examination (IME). However, there needs to be an objective basis for concluding that the initial medical information provided by the employee is either inaccurate, or insufficient. The IME can’t be used to “second guess” a person’s request for accommodation. As well, such requests for further medical information need to respect individual privacy to the greatest extent possible. An example of a human rights tribunal finding that the employer was justified in asking for an Independent Medical Examination can be found at MB v. Ottawa Catholic School Board, 2015 HRTO 1178 (CanLII).
- The employee also needs to take part herself or himself in the discussions regarding what the accommodation could look like and what possible solutions exist. However, the employee is NOT responsible for leading the accommodation process, coming up with a solution or implementing this solution. Ultimately, this is the job of the employer.
- Once the employer has initiated a proposed accommodation that is reasonable and would fulfil the legal duty to accommodate to the point of undue hardship, the employee has the duty to facilitate the implementation of the proposal, and not insist on the perfect accommodation. It is often said that the employee is not entitled to the Cadillac of accommodation options in all cases. See RB v. York Region District School Board, 2011 HRTO 213 (CanLII) for an example of a case where the Human Rights Tribunal of Ontario ruled that the employer was justified in terminating the employment of a teacher who refused to provide the requested medical documentation that was needed to substantiate her absence and need for accommodation.
- The accommodation process may be an ongoing one and throughout it, the employee is expected to cooperate with any experts who are consulted regarding how best to meet the needs of the disabled employee.
At the end of the day, transparent and open communication that is respectful of the dignity and privacy of the employee, while also recognizing the weighty legal human rights duties placed on the employer to accommodate employees to the point of undue hardship, can go a long way in facilitating the accommodation process.
For more information regarding the accommodation process as it relates to employers, employees or unions, please contact Mihad Fahmy at Mihad@fahmylaw.ca
