If an employee doesn't co-operate, can the employer walk away from the process?
Question: If an employer believes an employee isn’t making a sufficient effort to help find an accommodation solution, what does the employer need to do before declaring accommodation isn’t feasible?
Answer: We work with clients all the time to address situations like this. For some reason, many employees are of the view that they can demand accommodation and then sit back, refusing to be part of the process or provide documentation while expecting accommodation. Sometimes, they refuse to disclose any information at all under the mistaken belief that their privacy rights will protect them.
As we often tell our clients, and anyone else that will listen, the accommodation process is meant to be an ongoing dialogue between the employer and the employee. If the employee is represented by a union, they will also be a part of the discussion. And in many cases, it will be most efficient to involve the employee’s medical professionals.
The duty to accommodate arises in many contexts, including disability, childcare obligations, and addiction. Employers should have a clear policy in place which confirms their commitment to accommodation and reminds employees of their role in the process. Regardless of the context, we advise all employers to have a standard process for responding to requests for accommodation.
Once an employee requests accommodation of any kind, the employer should begin the process of
• Assessing whether there is a legitimate need that must be accommodated and, if so,
• The accommodation options available.
The first step will require that the employee provide appropriate documentation of the need for accommodation. While many employers are hesitant to require this, fearing that they will breach the employee’s privacy rights, this fear is generally baseless. An employer is entitled to know the limitations on the employee’s ability to carry out her job-related duties. If there are limitations, then accommodation may be required. The employer can then assess whether accommodation is feasible within the limits of undue hardship and, if there is more than one way to accommodate, assess which will be most appropriate; the employee does not get to choose.
If an employee refuses to provide sufficient information, she should be given clear warning that without that information, the request for accommodation cannot be addressed. If, as is often the case, the employee is off work, then her absence may be unauthorized. In some cases, we have worked with our clients to impose discipline and even dismissal when an employee is off work but refuses to provide documentation to support the absence or need for accommodation.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He is the author of You’re Fired: Just Cause for Dismissal in Canada published by Thomson Reuters Canada. He can be reached at [email protected] or (416) 864-8500.
