Accommodating employees with disabilities and medical issues is an integral part of creating an inclusive and equitable workplace. But what should an employer do if they receive a request for accommodation that does not provide enough information? How can we balance an employee’s right to privacy with an employer’s need for sufficient information to assess an accommodation request?
What is the duty to accommodate?
Under the Ontario Human Rights Code, employers have a legal duty to accommodate the needs of people with disabilities. This duty has both a procedural and a substantive component. This means that both the procedure used to assess the accommodation and the actual substance of the accommodation provided are important for employers to fulfill their duty.
However, the duty to accommodate is not absolute. Employers must accommodate to the point of undue hardship. Employers do not need to provide an accommodation if it would cause undue or excessive hardship, such as onerous costs or health and safety risks.
Duties in the accommodation process
The accommodation process is inherently collaborative, and both the employer and the employee need to be cooperative, share information, and work together to find potential accommodation solutions. The Ontario Human Rights Commission provides the following guidance:
Employees requesting accommodation must:
- Make their needs known to their employer, to the best of their ability, ideally in writing;
- Answer questions and provide information about their restrictions and limitations;
- Participate in accommodation discussions;
- Work with any experts or accommodations providers to manage the accommodation process.
- Accept accommodation requests in good faith, unless there are valid reasons not to;
- Take an active role in investigating possible accommodation solutions;
- Keep records of accommodation requests and actions taken;
- Communicate regularly with the employee regarding the status of their accommodation request;
- Maintain employee privacy and confidentiality;
- Consult with the employee to determine the most appropriate accommodation;
- Implement accommodations promptly.
Employees are not entitled to their preferred/perfect method of accommodation. It’s a two-way street and the employee and employer have to work together to create an accommodation plan that works for both parties based on the employee’s position, duties, and the medical information provided.
What medical information can be requested for accommodation of a disability?
In meeting the duty to accommodate, employers can request sufficient medical information to:
- Understand whether the employee has a disability (which therefore triggers the duty to accommodate);
- Understand how the disability restricts the employee’s ability to work; and
- Determine what accommodations may be appropriate in light of the employee’s restrictions.
As a best practice, employers can collect this information on a standardized form, such as a Functional Abilities Form (“FAF”).
Generally, employers should limit requests for accommodation to those related to the nature of the limitation or restriction, to assess the employee’s needs. The information requested should be as minimally intrusive as possible, while still allowing the employer to fulfill its duty.
When can the diagnosis be requested?
This question is sure to strike fear into the hearts of HR professionals everywhere. However, there may be times when an employer can request an employee’s actual diagnosis.
A diagnosis can be requested when it’s reasonable and necessary for the employer to accommodate the employee or assess the legitimacy of the request.
The general guidelines under human rights legislation are that employers should limit requests to the minimum information required to assess an employee’s accommodation needs. In rare situations where a person’s accommodation needs are complex, challenging, or unclear, the person may be asked to cooperate by providing more information, up to and including a diagnosis.
A diagnosis should generally not be requested as a first step (i.e. on the FAF directly) but only if required to clarify the initial information provided. The term “diagnosis”, meaning a formal medical name of a syndrome, condition, etc. is distinct from the “nature of injury/illness” which is a general statement of a person’s illness or injury in plain language without any technical medical details. The “nature” of the employee’s injury or illness can always be requested.
Frustratingly for employers, when a diagnosis can be requested is not cut and dry but depends on the circumstances and specific facts of each case. Examples of when it would be reasonable to request the diagnosis include:
- If it is unclear that the employee has a disability based on the provided information;
- Where the request does not seem legitimate;
- It is unclear what accommodations they need based on the medical information.
In these situations, employers are faced with a tricky balancing act of respecting employee privacy while still requiring sufficient information to assess accommodation requests and explore potential accommodation solutions.
If you need assistance navigating accommodation requests, be sure to get in touch.