The Employer’s Little-Known Duty to Inquire
Typically, the employer has no duty to accommodate an issue that they are unaware of. However, there are situations where an employee suddenly starts acting uncharacteristically or is experiencing work performance issues. If the employer notices these changes, they have a duty to inquire, as these changes may be related to a mental health issue or an addiction that requires accommodation. Simply put, the perception of a mental health disability engages the duty to inquire and is subject to the protection of the federal and the provincial Human Rights laws.
The duty to inquire is a human rights issue. The issue is that people who have mental health and addiction issues may be unable to identify that they have a disability and that they need accommodation. Further, people suffering from mental health and addiction-related disabilities, tend to be reluctant to disclose their disability due to the stigma associated with it. That is why accommodation providers must attempt to contact a person who is clearly unwell or is perceived to have a mental health or addiction issue to inquire if they need assistance. The employer will then need to give the employee a meaningful chance to identify their mental health or addiction issues.
The employer must inquire into an employee’s health before taking measures that would drastically affect that employee. However, if the employee continues to deny the existence of a mental health or addiction issue, the employer can apply progressive discipline. The employee’s potential disability must be a factor that is considered when determining what, if any, sanctions are appropriate. The employer is also allowed to ask for medical documentation to clear fitness to work if there is sufficient evidence that there are legitimate reasons to be concerned about the disability.
Cases show that the Human Rights Tribunals takes the duty to inquire seriously
The federal and provincial Human Rights tribunals have addressed the duty to inquire. In both Krieger v Toronto Police Services Board, (2010 HRTO 1361) and Mellon v Human Resources Development Canada, (2006 CHRT 3), the tribunals punished the employer for failing their duty to inquire.
In Krieger v Toronto Police Services Board, Krieger was a police officer who had a traumatic incident with a person carrying a handgun in a mall. Krieger started to show signs of Post-Traumatic Stress Disorder (PTSD). His symptoms led him to overreact to a drunk patron whom he perceived to be a threat. After that incident, his employers suspected that he was suffering from PTSD. However, Krieger’s employers did not inquire or offer aid to Krieger. The employers instead chose to dismiss Krieger for the incident with the drunk patron. The Human Rights Tribunal of Ontario found that the employer’s failure to inquire about Krieger’s mental health was discrimination. Krieger was reinstated as a police officer and was given $35,000 in compensation for injury to his dignity, feelings, and self-respect.
In Mellon v Human Resources Development Canada, Mellon was experiencing panic and anxiety attacks while working for Canada’s Human Resources Development department. The tribunal found that the employer should have been able to identify that Mellon was suffering from a mental disability. The fact that Mellon did not know the extent of her disability did not excuse the employer’s duty to inquire. Therefore, the tribunal decided that the employer’s choice not to renew Mellon’s contract was based on her disability. The tribunal ordered that the employer pay damages to Mellon.
How Suzanne Desrosiers Professional Corporation Can Help
Suzanne Desrosiers Professional Corporation can help employers by advising on their duty to inquire. We can also help employers and employees understand legislated accommodation requirements. We also provide human rights sensitivity training which would be beneficial to all employees in a management type of position who have authority to discipline or even terminate an employee. For help with your duty to inquire or accommodation needs, you can reach us by calling us at 705-268-6492.