Ignoring the Elephant in the Room: The Cost of Not Asking an Employee with a Disability if She Needs Accommodation

The Question

One of the questions employers ask me is, “If I think someone has a disability, do I have to ask whether the person needs accommodation?”

When the Question Can Arise

This question can arise when an employer believes an employee has an alcohol or substance abuse addiction.

It can also arise when an employer believes an employee has a mental illness.

The Law

Under the Ontario Human Rights Code an employer is required to accommodate a disabled employee unless his or her needs cannot be accommodated without undue hardship on the employer considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

However, the Code does not explicitly require an employer to ask a disabled employee whether he or she requires accommodation.

The Ontario Human Rights Commission “Policy on preventing discrimination based on mental health disabilities and addictions.”

On the flip side, Section 13.6.1 of the Policy called “Duty to inquire about accommodation needs” states in part: “Accommodation providers must attempt to help a person who is clearly unwell or perceived to have a mental health disability or addiction by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation.”

Cases decided under the Ontario Human Rights Code

A number of adjudicators appointed under the Ontario Human Rights Code have also concluded that in certain circumstances an employer does have a common law duty to ask the employee whether he or she needs accommodation.  For example, in a case decided earlier this year, an adjudicator wrote:

“I conclude that the (employer) initially failed in its procedural duty to accommodate in that, despite knowledge of the nature of the applicant’s disabilities, …, the applicant’s supervisors did not initiate any inquiry as to whether the applicant needed accommodation.” Sears v. Honda of Canada Mfg., 2014 HRTO 45 (CanLII),  In this case, the adjudicator issued a number of orders against the employer including an order to pay a former employee $35,000 in general damages to compensate for injury to his dignity, feelings and self-respect.

Lessons to Be Learned:

An employer cannot turn a blind eye to an employee who shows objective signs of being disabled. This might be an employee who is suffering from panic attacks at work.

What constitutes knowledge of a disability will be decided on a case by case basis.

Supervisors should take on an active role here. They need to know that the employer is obliged to ask a disabled employee whether any accommodation is needed and accordingly should receive training on this issue. Training should include examples of what to look for in terms of identifying a disability. Supervisors should also be instructed to notify the person who is responsible for accommodating disabled employees at the workplace when an employee shows objective signs of being disabled.

For those interested in finding out more information about managing disabled employees, I am co-chairing a program on Managing Disabled Employees on November 3, 2014. To register for this seminar click here.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions concerning your obligations towards disabled employees or employer obligations in general, you can contact him at 416 317-9894 or at [email protected]