As employment lawyers in Toronto, we often encounter situations where employers and employees are unsure about their rights and obligations regarding workplace accommodations. An important aspect of this is the “duty to inquire” – a legal obligation that plays a significant role in ensuring fair treatment and accommodation in the workplace.
In this blog post, we explore what the duty to inquire means under Canadian labour and employment laws, what it requires from employers, and how it should be exercised.
What is the Duty to Inquire?
The duty to inquire is a legal obligation that requires employers to take proactive steps to determine whether an employee needs accommodation in the workplace, even if the employee hasn’t explicitly requested it. This duty arises when an employer notices changes in an employee’s behaviour or performance that could potentially be linked to a disability or other protected ground under human rights legislation.
When Does the Duty to Inquire Arise?
The legal duty for an employer to inquire is triggered when:
- An employer is aware or reasonably ought to be aware of a potential need for accommodation.
- An employee’s behaviour or performance significantly deviates from normal expectations.
- There are noticeable “red flags” that suggest a possible disability or need for accommodation.
For example, if an employee who has consistently been punctual suddenly starts arriving late frequently or if a typically high-performing employee’s work quality drastically declines, the duty to inquire could arise.
What Does the Duty to Inquire Require from Employers?
When the duty to inquire is triggered, employers are expected to:
- Approach the employee privately and sensitively.
- Ask if the employee needs any assistance or accommodation.
- Provide an opportunity for the employee to disclose any relevant information.
- Gather sufficient information to understand the employee’s needs.
- Consider potential accommodations.
It’s important to note that employers are not entitled to any specific medical diagnosis. The focus should be on understanding the functional limitations and accommodation needs.
How Should Employers Exercise the Duty to Inquire?
Exercising the duty to inquire requires tact and sensitivity. Here are some best practices:
- Maintain confidentiality throughout the process.
- Frame the conversation in terms of the observed behaviour or performance issues.
- Ask open-ended questions about what support the employee might need.
- Document the conversation and any follow-up actions.
- Be prepared to engage in the accommodation process if needed.
Examples of the Duty to Inquire in Action
To illustrate how the duty to inquire works in practice, let’s consider a few examples:
Example 1: Sarah, a long-time employee, has recently been missing deadlines and seems distracted at work. Her manager notices these changes and schedules a private meeting to ask if everything is okay and if Sarah needs any support.
Example 2: John, a warehouse worker, has been having difficulty lifting heavy items, something he used to do with apparent ease. His supervisor approaches him to inquire if he’s experiencing any health issues that might require accommodation.
Example 3: Maria, a Customer Service Representative, has been unusually short-tempered with customers lately. Her team leader pulls her aside to express concern and to ask if there is anything going on that the company should be aware of to support her.
In each scenario, the employer demonstrates a proactive approach, showing concern for the employee’s well-being and willingness to provide support. This not only helps in identifying possible underlying issues but also contributes to strengthening the employee-employer relationship by building trust and open communication.
The Importance of the Duty to Inquire
The duty to inquire serves several important purposes:
- It helps create an inclusive workplace where employees feel supported.
- It allows employers to address potential issues before they escalate.
- It helps employers fulfill their legal obligation to accommodate employees.
- It can prevent discrimination claims by ensuring that employees with disabilities are given proper consideration.
Consequences of Failing to Fulfill the Duty to Inquire
Employers who fail to fulfill their duty to inquire may face legal consequences. If an employee is disciplined or terminated for performance issues that were related to an undisclosed disability, the employer could be found liable for discrimination if they did not take steps to inquire about potential accommodation needs.
FAQs About the Duty to Inquire
Q: Does the duty to inquire apply to all workplace issues?
A: No, it primarily applies to situations where there is a reasonable suspicion that an employee’s performance or behaviour issues might be related to a disability or other protected ground under human rights legislation.
Q: What if an employee refuses to disclose information when asked?
A: If an employee declines to provide information or denies needing accommodation, document the conversation. The employer has fulfilled their duty to inquire at that point.
Q: How much information can an employer request?
A: Employers can request information about functional limitations and accommodation needs, not specific medical diagnoses.
Q: Does the duty to inquire mean employers can’t discipline employees for performance issues?
A: No, but before taking disciplinary action, employers should ensure they have fulfilled their duty to inquire and consider any potential accommodation needs.
Q: What if accommodating an employee would cause undue hardship?
A: Employers have a duty to accommodate up to the “undue hardship”, as defined by law. In short, employers should make an exhaustive effort to accommodate an individual, including by exploring alternative arrangements if requested adjustments are determined as not operationally feasible.
Takeaway
The duty to inquire is a crucial aspect of Canadian employment law that helps ensure fair treatment and proper accommodation in the workplace. Through the effective application of this duty, employers can contribute to a more inclusive workplace and, by extension, avoid potential legal pitfalls. As employment lawyers, we encourage employers and employees to know their rights and obligations. If you have any questions about the duty to inquire or need assistance with a workplace accommodation issue, don’t hesitate to seek legal advice. Contact employment experts, Sultan Lawyers, online or by telephone at 416-214-5111.
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