Accommodation not 'one size fits all'
Ontario Human Rights Commission policy on mental health accommodation addresses questions on employer's right to medical documentation
Sep 2, 2014
By Stuart Rudner
Accommodation of disability is a frequent battleground in the context of employment.
Employees request accommodation for various forms of disability that run the gamut — from sprained wrists to severe depression. Employers, knowing they are required to accommodate, are often skeptical. Sometimes this is for good reason, as the sad reality is there are some individuals who know how to abuse the system through bogus requests. The result is that some legitimate requests are questioned.
The recent tragedy of Robin Williams' suicide has cast the spotlight once again on depression. In a recent post, I discussed the process for requesting accommodation and responding to such requests. In particular, I wrote that:
"When such a request is made, the employer is entitled to request sufficient medical documentation in order to allow them to understand the specific limitations upon the employee's ability to carry out their duties that require accommodation."
A reader posted the following comment:
"This article implies that when an employee approaches an employer with a request for accommodation on the basis of mental disability the employer should automatically seek medical information. Section 13.7 of the Ontario Human Rights Commissions' Policy on Preventing Discrimination based on Mental Health Disabilities gives good examples of a preferable approach: focus on the person’s own assessment of their needs and strengths. Only if the person’s needs are complex, or the person is not taking part in the process, should additional information from a doctor be sought. Otherwise employees with mental health issues are stigmatized as liars seeking unnecessary special privileges."
This was a legitimate point, and was a helpful reminder of the Ontario Human Rights Commission's recently released policy, which is quite thorough in discussing issues of particular relevance to mental health disabilities. Among other things, the policy addresses the accommodation process and the employer's right to request medical documentation. Rather than attempt to interpret or paraphrase the policy, I have reproduced relevant portions of it below:
The person with a disability is required to:
• answer questions or provide information about relevant restrictions or limitations, including information from health-care professionals, where appropriate and as needed
• co-operate with any experts whose assistance is required to manage the accommodation process or when information is needed that is unavailable to the person with a disability
The accommodation provider is required to:
• accept the person’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
• get expert opinion or advice where needed (but not as a routine matter)
• limit requests for information to those reasonably related to the nature of the limitation or restriction, to be able to respond to the accommodation request
The type of information that accommodation seekers may generally be expected to provide to support an accommodation includes:
• that the person has a disability or a medical condition
• the limitations or needs associated with the disability
• whether the person can perform the essential duties or requirements of the job, of being a tenant, or of being a service user, with or without accommodation (this is more likely to be relevant in employment)
• the type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job, of being a tenant, or of being a service user, etc.
Where someone’s needs are unclear, they may be asked to attend an independent medical examination (IME). However, there must be an objective basis for concluding that the initial medical evidence provided is inaccurate or inadequate. The IME should not be used to “second-guess” a person’s request for accommodation. Requests for medical examinations must be warranted and take into account people’s particular disability-related needs.
No one can be made to attend an independent medical examination, but failure to respond to reasonable requests may delay the accommodation until such information is provided, and may ultimately frustrate the accommodation process
An accommodation provider should be able to explain why it is requesting particular information about a person’s disability and how this relates to accommodating the person.
If the person does not agree to provide additional medical information, and the accommodation provider can show that this information is needed, it may be the case that the person seeking accommodation could be found to not have taken part in the accommodation process and the accommodation provider would likely be relieved of further responsibility.
It is fair to say that employers receiving a request for accommodation should not automatically demand a fixed set of information and documentation. They must assess whether additional information is genuinely necessary in order to understand and assess the request for accommodation, and limit their request to that information which is truly necessary.
If they can justify such a request, and the individual refuses, then the obligation to accommodate may be at an end. However, insisting upon the provision of unnecessary information before complying with a request for accommodation can result in a finding of discrimination.
For employers, remember that the accommodation process is not "one size fits all." Every request must be assessed based upon its specific merits and facts and requests for information should be justifiable.
For employees, do not assume privacy legislation allows you to simply ask for accommodation and then refuse to provide any information whatsoever (as some individuals have claimed). Rather, be prepared to disclose information that is reasonably necessary to allow your employer to assess the need for accommodation and the potential forms thereof. At the same time, do not blindly comply with every request for information, as some employers continue to demand the individual's "complete medical file" in response to all requests for accommodation.
Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
. He can be reached at email@example.com