When an employee requests accommodation
Question: If an employee requests accommodation in the form of modified duties, how long should it take to investigate and implement before it becomes too long? Can the employer wait if it knows another employee in a suitable position will be retiring soon?
Answer: It is critical that employers have a procedure in place to respond to requests for accommodation, regardless of the nature of the request. It is not possible to specify a period of time that is reasonable to assess the request, as it will depend on the circumstances, including the information provided by the employee and the employee’s willingness to co-operate in the process.
Accommodation must be based on a dialogue between the employee and the employer. It is not sufficient for an employee to request accommodation and then refuse to participate in the accommodation process or provide additional information. Privacy laws do not mean that an employee does not have to provide any information. However, the employer cannot require extraneous information, such as the specific diagnosis of the medical condition. The emphasis should be on the limitations upon the employee’s ability to carry out her duties, and not on the disability itself.
Once the employee has provided sufficiently detailed information on her need for accommodation, the employer must engage in a good faith analysis to assess whether accommodation is required and, if so, whether it is possible. The duty to accommodate is to the point of undue hardship, which is substantial. If an employer seeks to assert that accommodation is not possible without undue hardship, it will need to have clear evidence of this.
With respect to the second aspect of the question, the employer cannot simply delay for the purpose of delay. If accommodation is not possible before the other employee leaves, it will need to be upfront about that. It is conceivable that an employer could say that accommodating immediately would cause undue hardship, but that accommodation would be feasible once a position opens up. The employer would have to demonstrate this, however, with cogent evidence.
