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Employment & Labour

Duty to accommodate – even when not requested

An employer’s duty to accommodate can even apply when an employee hasn’t asked for it, says Vancouver workplace occupational health and safety, and employment lawyer Melanie D. Booth.

“Normally, the employee has a duty to ask for accommodation, but there are always exceptions,” says Booth, a lawyer practising as a professional corporation with Kane, Shannon & Weiler.

For example, there may be a mental health issue involved and the worker may not recognize there’s a problem, she tells AdvocateDaily.com.

Even if the person doesn’t ask for it, an employer must accommodate anyone who shows signs of needing it, explains Booth.

Here are some signs that an employee may require accommodation:

  • Sudden drop in attendance
  • Increase in tardiness
  • Sudden behavioural changes
  • Unusually poor work performance
  • Unsafe work practices

Booth says some people may be reluctant to inform an employer that they require a change to their regular work environment or responsibilities.

“Or they may be in denial or not able to identify that they need an accommodation or have a disability. In this situation, an employer should first approach the employee in a non-confrontational and discrete manner to discuss the potential need for changes,” says Booth.

“If applicable, a union representative or support person should be present at the meeting.”

She says the following key points should be communicated to the employee during the meeting:

  • The discussion is confidential;
  • The purpose is to determine if there is a problem or issue that needs accommodation and to determine what changes should be made;
  • The employee will not be negatively affected by any changes made or information provided;
  • There will, if applicable, be a review of the employer’s accommodation policies and procedures;
  • When needed, the person will be referred to services paid for by the company, such as an employee assistance plan, short- or long-term disability plans, or other financial and personal supports;
  • There may be a request for a third-party opinion from a specialist to help develop the accommodation plan;
  • If the employee is not capable of participating in the process, a union rep, advocate, spouse or power of attorney may help design the plan.

Booth says an employer “is only entitled to receive the information necessary to enable it to accommodate the employee.” That means it is only entitled to “professional verification that the employee has a legitimate functional limitation” and an estimate of how long the employee will need to be accommodated.

Employers do not have access to the entire professional report, although determining what is “necessary” may require further legal involvement, she adds.

“And co-workers only need enough information to enable them to work safely and efficiently with the employee,” she says.

Booth says companies should have clear policies in place and make sure they’re well communicated to workers.

“These policies should include clear procedures for gathering medical information and for maintaining the highest possible level of confidentiality,” she says. "And the data should only be used to accommodate an employee."

Booth says there are other questions to consider:

  1. Should you use an outside source to assist in determining accommodation?
  2. Does the collective agreement give the employer any other rights to gather or request medical information for employees with disabilities, absence problems, etc.?
  3. Looking at the tasks that the employee performs, are there safety issues involved? Are there bona fide occupational requirements that the employee is not able to meet?
  4. Is there a joint committee between the union and employer? If not, is this something that may be helpful to establish?

Booth says an employer’s obligation to accommodate has undergone many changes in recent years and legislation varies from province to province.

“This is a complicated area of the law and the issues are often sensitive for the worker involved. Often, it’s helpful to bring in a legal professional to help both sides understand their rights and obligations,” she says, adding that "lawyers can also help companies develop their own accommodation policies." 

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