This article will look at two of the most common questions that arise when Alberta employers are attempting to fulfill their duty to accommodate pursuant to the Alberta Human Rights Act.
Is the duty to accommodate in Alberta triggered even when an employee has not formally disclosed a disability or need for accommodations?
The duty to accommodate can be triggered by formal disclosure of a disability. However, where an organization is aware, or reasonably ought to be aware that there may be a relationship between a disability and someone’s job performance, the Employer has a positive duty to inquire into that possible relationship, before making any decisions that may impact the employee adversely (such as disciplinary action or termination). This is called the “duty to inquire.” The duty to inquire is most often triggered in situations where an employer is suffering from a disability that is not immediately obvious, such as a mental disability.
Concluding that a mental disability is at play can be tricky. However, an alteration in an employee’s mood or behaviour that is material enough or long enough to extend past “having a bad day or two” may point to a potential mental disability and trigger an employer’s duty to inquire.
Once an employer concludes that the cause of an employee’s performance issues may be a mental disability, the employer must provide a meaningful opportunity to the employee to identify what they are dealing with and request assistance or accommodation. This can be done with an initial meeting giving the employee the opportunity to raise (or not to raise) any issues or need for accommodations.
During this initial meeting, an employer should highlight any resources or accommodation policies offered by the organization, and make sure to frame any issues within the context of the employee’s work performance only, so that the employee does not feel that their privacy is being infringed.
Can an Alberta Employer request medical information from an Employee during the accommodation process?
Although personal medical information is inherently private, this privacy right is not absolute. An employer’s legal duty to accommodate is based on the presentation of reliable evidence showing that an employee suffers from a disability and that their disability prevents them from performing certain duties or tasks. Therefore, an employee has no right to accommodation unless they are able to provide sufficient and reliable evidence of a disability. Based on this, an employer is entitled to medical information as long as the request is reasonable and made in good faith. Employers should generally limit their request to medical information that will:
- Confirm the existence of a condition, and therefore the need to provide accommodation;
- Help the employer understand what limitations are imposed by the disability; and,
- Help the employer understand what will and will not work for the employee in regard to accommodations.
Confirming the existence of a condition does not include a copy of the employee’s official diagnosis. In most cases, an employer does not need to know the name of a disability in order to accommodate it and should avoid asking for an official diagnosis or cause. An employer should avoid asking for copies of test results, or information regarding prescriptions or medical history.