What Questions Can an Employer Ask an Employee with a Disability?

Posted: July 21, 2013 in Disability
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Employees within Ontario have the right to be treated equally in employment, without discrimination, on the basis of a number of grounds which are set out in section 5 of the Ontario Human Rights:

• Race;
• Ancestry;
• Place of origin;
• Colour;
• Ethnic origin;
• Citizenship;
• Creed;
• Sexual orientation;
• Gender Identity;
• Gender expression;
• Age;
• Record of offences;
• Marital Status;
• Family Status, and
• Disability.

This article deals specifically with the ground of disability. The duty to accommodate is triggered for employers when the employer knows or ought reasonably to know that the employee had a disability.

It is discriminatory to use the application process to screen prospective employees on the basis of disability. In this respect, employers are not permitted to ask questions that reveal information about a Code ground. For example, an employer cannot ask a prospective employee if he or she has a driver’s license if a driver’s license is not an essential element of the job description. Even where a driver’s license is an essential element of the job description for which the employee is interviewing, the employer cannot ask to view the driver’s license or photocopy it. To do so would give the employer information about the employee’s age for example, a protected Code ground. Instead employers should include a statement on the application that a driver’s license is required for an essential element of the position and successful applicants will need to prove they possess a driver’s license.

Upon learning that an employee has a disability, employers have a duty to accommodate short of undue hardship. The duty to accommodate is a two-way street. Employees have an obligation to provide employers with information necessary to determine appropriate accommodation. In some cases, employees will provide their employer with a medical note stating a generic line such as “For medical reasons, Joe can no longer perform his duties as labourer and should instead be moved to the position of reception for a period of two months”. The Tribunal has stated on a number of previous occasions that generic statements are insufficient. It is not the role of a doctor to identify the specific job an employee can perform. Rather, the doctor’s role is to identify the patient’s physical or mental restrictions or the specific disability related accommodated required. The employer should use that information to determine whether and how it can accommodate the individual in the specific workplace in question. The obligation is on the employer to accommodate to the point of undue hardship. When the employer receives a generic medical note, they may request additional information from the employee. Determining the appropriate questions however is the challenge.

The Human Rights Tribunal of Ontario (“HRTO”) has made it clear that employees are expected to waive some privacy in order to open an accommodation dialogue. Generally, employers do not have the right to ask what the diagnosis is, but rather may seek information about the employee’s functional limitations in order to determine how those limitations can be accommodated in the specific workplace. In 2009, the HRTO clarified the information employers are entitled to, stating:

For the purposes of a request for employment accommodation, generally the focus should be on the functional limitations of the employee’s condition (capacities and symptoms) and how those functional aspects interact with the workplace duties and environment. Consequently, an employer need not be informed of the specific cause of the employee’s condition or the exact diagnosis in order to be put on notice that an employee has disability-related needs requiring accommodation…

In order to trigger a duty to accommodation, it is sufficient that an employer be informed of the employee’s disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation…

The Tribunal has found that employees have failed to establish a prima facie case of discrimination in cases where employees fail to provide necessary information to employers. There is often a fine line between inappropriate and appropriate requests for medical information. Be safe and consult a lawyer practicing in human rights law prior to refusing to provide medical information.

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