Participating in the accommodation process (Toughest HR Question)

Process is intended to be 2-way dialogue
By Stuart Rudner
|Canadian HR Reporter|Last Updated: 04/01/2016

Question:

If an employee refuses to participate in the accommodation process but clearly can’t do her full duties, what process should the employer follow before it gives up and dismisses the employee?

Answer:

An employer has a duty to accommodate the disability of an employee to the point of undue hardship, unless it can show there is a bona fide occupational requirement that would prevent it from doing so. While privacy legislation, as well as human rights laws, restrict the amount and type of medical information an employer can require from the employee, the employer is entitled to understand the limitations upon the employee’s ability to carry out her work-related duties.

In other words, the employer is entitled to fully understand the need for accommodation so it can assess the viability of providing accommodation, as well as the options for doing so.

The accommodation process is intended to be a two-way dialogue between the employee and the employer (or a three-way dialogue that would include a union if one is present). Employees are not entitled to make a request for accommodation and then refuse to participate in the process.

Sometimes, an employer will suspect an employee’s poor performance is caused by a disability. Rather than engaging in discipline or performance management, it is often appropriate to speak with the employee and, respectfully, inquire as to whether there are any extenuating circumstances that are impacting his performance. 

If the employee refuses to acknowledge a disability or need for accommodation, after being been given reasonable opportunity to do so, then the employer may be unable to consider any possible need for accommodation and, if circumstances warrant it, can proceed with dismissal. 

The dismissal could be for just cause in appropriate circumstances or can simply be on a without cause basis, in which case the employee would be entitled to notice of dismissal or pay in lieu thereof. It would be crucial for the employer to document all of its efforts to discuss any need for accommodation with the employee, and the employee’s refusal to participate in the discussion.

Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto-based employment law firm. He is the author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at srudner@rudnermacdonald.com.

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