Answers to some frequently asked questions
Reprinted from the How’s Work? Life in the Workplace issue of Visions Journal, 2022, 17 (3), pp. 8-10
As a workplace lawyer I am often asked to advise employers on how to support employees who are experiencing mental health challenges. Much of the discussion involves responding to requests for accommodations, a complex area that often requires clarification on legal duties, and which benefits greatly from expert advice, as there can be quite a bit of confusion. Below, I’ll try to demystify workplace accommodation by answering some of the questions I’ve most frequently been asked about this developing area.
What is a workplace accommodation?
The issue of workplace accommodations often arises when an employee asks for an adjustment or adaptation to a workplace rule or standard. The employer typically has significant discretion in deciding whether to agree. However, when the request is due to a mental disability (including disabling mental illnesses and substance dependencies) or other protected ground(s) under the BC Human Rights Code,1 questions about legal duties quickly come up.
Is there a right to an accommodation?
The first area of confusion is whether a legal duty to accommodate exists (as opposed to an employer using their own discretion). Under human rights law employers only have a legal obligation to accommodate or adjust a workplace rule or standard when the employee has a disability (or other protected ground) and the disability is impacting the employee’s ability to meet the workplace rule or standard.
When is the right time to request an accommodation?
While the “right time” will depend on the circumstances, there tend to be two main approaches. The first is when the employee does not request the accommodation until after performance or attendance concerns have been raised by the employer. For instance, an employee with depression or substance dependency may have been struggling in silence with their focus, attendance or productivity until they receive a warning that they may face employment consequences if they don’t improve.
This difficult conversation may be the first time the employee realizes that something needs to change. If the employee then requests an accommodation, the request appears more reactive and could be perceived (rightly or wrongly) as less legitimate. While there may be reasons the employee did not speak up earlier, the downside of this approach is that repair work or education may be needed to re-establish trust in the employee’s commitment or abilities.
Alternatively, employees may choose to be proactive and alert employers about their mental disability before there is a problem, often to prevent or minimize such problems. For example, an employee who has bipolar disorder or a substance dependency may ask the employer to contact a trusted support person if they display certain behaviours in the workplace so as to minimize workplace disruptions and prevent a more significant relapse. An employee with depression may ask for a later start time when taking a new medication causing drowsiness.
What are typical accommodations?
While accommodations are unique and contextual, typical accommodations may include flexible hours while the employee starts a new medication or seeks treatment, noise-cancelling headphones to minimize distractions or microbreaks to re-establish focus. A successful accommodation is one where the adjustments allow the employee to work to their fullest potential.
What happens next?
The second area of confusion can occur after an employee requests a workplace accommodation because of a disability. Some employees may think the employer must simply grant their request for a specific accommodation, no questions asked. Employees may be surprised to learn that the employer has a legal right to request information that, first, substantiates the basis for the request (i.e., that the person has a disability), second, sets out what restrictions or limitations are caused by the disability (if any) and third, establishes the prognosis for recovery.
The employer may also ask whether the employee has been prescribed a treatment and, if so, whether it is expected to have an impact on any limitations or restrictions. This information will typically come from the employee’s treating physician, but in some cases it may be preferable if a specialist provides more information. The employer’s right to seek medical information becomes a legal duty if the employer is considering disciplining the employee for conduct that the employer knows or should know may be caused by the disability.
Whose duty is it to accommodate?
The third area of confusion is whose legal duty it is to accommodate. What people may not realize is that the “duty to accommodate” is shared between the employee, the employer and, in some cases, an employees’ union. The employer has a duty to provide a reasonable accommodation if they can do so without experiencing what is referred to as “undue hardship.” The employee has a duty to participate in the accommodation process. Participation can include providing medical information, following reasonable treatment recommendations, and accepting a reasonable accommodation, even if it is not what the employee asked for.
When has the duty to accommodate been met?
The fourth area of confusion surrounds knowing when the duty has been met. Employers are expected to manage some inconvenience, disruption and cost in accommodating a disabled employee if they can do so without experiencing undue hardship. What undue hardship means will differ depending on the circumstances. An employer with a large workforce may be able to accommodate a long medical absence, while a small or family-run business may not. Safety-sensitive employment (i.e., employees working with heavy machinery or in dangerous environments) or decision-critical employment (i.e. employees who must exercise sound judgment, like doctors or accountants) may also have different considerations.
An employer is relieved of the legal duty to accommodate if an employee does not participate in the accommodation process. This could happen if an employee insists on a “perfect accommodation” and refuses a reasonable accommodation, or refuses to provide medical information to support their request. If there are disagreements, the BC Human Rights Tribunal (or, in unionized workplaces, a labour arbitrator) may have to decide whether each party has met their legal duties.
What if I have questions?
This summary provides just a glimpse into the complex areas employers and employees may have to navigate and is not meant to be legal advice. As a lawyer I always recommend that employers and employees seek legal support from an expert in the area. However, there are excellent resources available for both employers and employees. The BC Human Rights Tribunal website is a great place to start, at www.bchrt.bc.ca.
About the author
Julie is a partner at the Vancouver workplace law firm Roper Greyell LLP. Previously a mental health professional, she takes on cases related to mental health disability and workplace misconduct. She is a director of the board for the Canadian Mental Health Association’s North and West Vancouver branch
- Human Rights Code, RSBC 1996, c 210. Available at: www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01.