Last week, we discussed challenges that employers face when dealing with substance dependence and addictions challenges in the workplace. We ended off discussing the employer’s duty to inquire.
An employer has a duty to inquire as to whether an employee has disability-related accommodation needs when the employer is aware or reasonably ought to be aware that there may be a relationship between a disability and the employee’s job performance. An employer who observes unusual or troubling behaviour has a duty to assess the situation and look into whether the employee’s behaviour may be the result of a disability before the employer imposes any sanctions on the employee.
An employer has a duty to raise concerns with the employee and to advise the employee that accommodations may be possible if their behaviour is a result of a disability, for example.
Duty to Accommodate
Employers have a duty to take steps to accommodate employees with disabilities up to the point of undue hardship (mere inconvenience will not let the employer off the hook). Factors such as the costs of accommodation and safety of accommodation are examined to determine whether an employer has satisfied its obligation.
Though the employee need not request accommodations, they have the duty to cooperate with the employer in the accommodations process, which could include providing the employer with information from their doctor about their health condition. To this end, the employers can ask the employee and their medical provider(s) for information about their restrictions with respect to their job duties and whether the employee has a disability that requires accommodation.
Assuming the employee answers yes, the employer can and should ask the following follow-up questions:
- Are there any restrictions or limitations resulting from your disability that impact the performance of your job?
- Are there specific recommendations for accommodation that will facilitate a successful and safe return to work (if the employee is off from work)?
- Do you have a treatment plan in place? If so, how will this affect your work performance and schedule?
- What is the prognosis of your condition?
- Can you safely perform your job (if in a safety-sensitive position)?
- Do you require medication that produces side effects that may prevent you from working (if in a safety-sensitive position)?
Employers are entitled to enough information from the employee to understand what accommodations are needed and/or the employee’s prospects for safely returning to work, should they be off. The employer should, however, keep in mind to only ask for information relevant to the employee’s possible need for accommodation and their actual job duties. A balance must be struck between the employer’s right to manage the workplace and the employee’s right to privacy. Employers should take a more flexible approach to this process and will typically not be entitled to information like the employee’s diagnosis.
Employers should also be cognizant of the fact that relapses are a common part of addictions and be prepared to provide ongoing accommodations to employees who may undergo more than one relapse. Employers may be required to accommodate several relapses and leaves before being deemed to have reached the point of undue hardship.
If you have questions about your duty to inquire and/or how to accommodate substance dependence in the workplace, get in touch for a consultation!
Stay tuned for Part 3 next week, where we discuss leaves and drug and alcohol testing!