One of your employees has been missing a lot of work lately and has also been unusually emotionally erratic. In addition to the attendance and behavioural issues there have been performance issues that you want to address. You suspect the person may have a mental illness. What do you do?
The Duty to Inquire
This is a really difficult situation that raises the question: At what point before disciplining an employee is an employer required to ask an employee whether they have a disability that may need to be accommodated?
A definition: According to the Ontario Human Rights Commission’s Policy on ableism and discrimination based on disability issued in 2016:
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.
Three cases that Consider the Duty to Inquire
Mellon v. Human Resources Development Canada – The employee’s behaviour and work performance changed. The Employer noticed that she was crying at work and had mentioned she was stressed at work. The Employer terminated the employee. The Tribunal held that the employer should have inquired after noticing the employee’s change in the employee’s performance and attitude.
Krieger v. Toronto Police Services Board – A police officer was involved in a traumatic incident where he struggled with a suspect who carried a handgun. He began experiencing Post-Traumatic Stress Disorder (PTSD) symptoms. Shortly after this, the officer overreacted to another incident. The employer fired him for the over-reaction. The Tribunal found that the employer believed that the officer could be experiencing PTSD, but took no steps to accommodate him. The Tribunal reinstated the officer.
Wilson v. Transparent Glazing Systems – The employee injured his back in a car accident, which the employer knew about. The employee took medical marijuana for back pain and migraines. The employer received a complaint that the employee took medication that affected his work, and fired him. The Tribunal held that the employer, knowing about the back pain, should have inquired into whether the medication was for a disability.
Lessons to be learned
- If a person with a good attendance & performance record starts missing work and/or acting erratically and performing poorly then before disciplining – especially a termination – there may be a duty to ask whether the employee has a disability that requires accommodation.
- Many persons with substance abuse problems will not admit to having an addiction which is considered a disability under human rights laws. So even if asked during disciplinary or performance management meetings these employees often deny having a disability. Dealing with this kind of situation is particularly difficult especially when there are signs of substance abuse (i.e change in physical appearance, personal hygiene issues etc.).
- If your organization has a wellness program and/or short-term disability benefit plan then think about making employees aware of these benefits on a regular basis.
For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]
In February 2017, after a 40 day trial, an Ontario trial judge ordered the RCMP to pay Peter Merrifield $100,000 in general damages, $41,000 in special damages, and $825,000 in legal costs. In doing so, the trial judge recognized the tort of harassment. For my blog on...read more
Wrongful Dismissal Update: How to Reduce Termination Pay for Employees Who Earn Variable Compensation
Some employees receive a large percentage of their total compensation in variable compensation. A much litigated issue is whether the employer is required to pay variable compensation to a terminated employee during the applicable notice period and if so how is this...read more
An arbitrator who upholds a grievance can reinstate the employee, or order the employer to pay the employee damages. In a 2018 arbitration case, Arbitrator Surdykowksi decided how to calculate damages for an employee who was not reinstated. Facts Dr. Bernard was a...read more