Employees’ Rights and Responsibilities
Questions in this section (click on question):
18. What is the employee’s duty to ask for accommodation?
19. What if the employee refuses to cooperate in the accommodation process?
20. Do employees have to tell their employers why they need to be accommodated?
18. What is the employee’s duty to ask for accommodation?
Employees must communicate their need for accommodation to their employer. They cannot assume that their employer knows about this need, or that the employer even suspects the need. In fact, if an employee does not communicate a need, the employer may be absolved of its legal duty to accommodate.8 Employers cannot be held liable for not accommodating needs they do not know about or could not have reasonably known about. What is “reasonable” depends on the facts of each case.9
This being said, there may be an exception if a particular disability makes it difficult or impossible for the employee to express the need for accommodation. For example, in the case of some mental illnesses, the disability itself prevents the person from identifying the need for an accommodation.10
If the need for accommodation is obvious—for example, if an employer notices a drastic change in an employee’s behaviour or attitude—the employer has a responsibility to engage the employee in a confidential discussion about accommodation.
Another exception may arise if the employee does not become aware that a disability is affecting his or her work until after being dismissed for incompetence or incapacity. In this case, the employer may have a duty to reconsider its decision to dismiss the employee, after reviewing medical information.11 For example, an employee who develops a mental illness may not be aware that behavioural changes are due to a mental illness.
See also Question # 23 (An employer suspects an employee needs accommodation, although the employee has not requested it. What is the employer’s responsibility to address this?)
8 Williams v. Elty Publications Ltd., (1992), 20 CHRR D/52 (BCCHR)
9 Westmin Resources Ltd., (1997) 63 LAC (4th) 134
10 Mager v. Louisiana-Pacific Canada Ltd., unreported, BCHRC, June 29, 1998.
11 Zaryski v. Loftsguard and Percival Mercury Sales, (1995), 22 CHRR D/256 (Sask. Bd. Inq.)
19. What if the employee refuses to cooperate in the accommodation process?
Employees are expected to be cooperative and reasonable when considering proposals that effectively respond to their needs. Employees should not make impractical accommodation demands.
Often, an employer will take reasonable steps to accommodate, but those steps might not meet the employee’s idealized expectations. If the employee rejects a reasonable accommodation, she or he may be absolving the employer from liability.12
For example, an employee returning to work after surgery may ask for another employee’s position as part of a return-to-work program. The employer may instead suggest modifying the returning employee’s duties. In this case, the employer has met its duty to accommodate.
12 O’Malley and Renaud, op cit.
20. Do employees have to tell their employers why they need to be accommodated?
Often, we have to balance the privacy interests of the employee and the information needs of the employer.
Employees are often reluctant to share medical or personal information with their employer. For some employees, this information is private and they do not want it shared with anyone. Some employees are also concerned that their employer will not keep their information confidential, leaving them vulnerable to workplace harassment. They even fear that the employer will use the information against them to fire or demote them.
The employee needs to provide information to support a request for accommodation. The employer is entitled to sufficient information about the need to be accommodated, about suitable accommodations and about the employee’s prognosis.
The employer may require a report from the employee’s doctor. The report should concentrate on the functional or other limitations that require accommodation. It should not recite the medical condition. If the employer has concerns or doubts about the information, it may ask for another opinion or for an outside expert’s assessment. Even so, the focus is on how best to accommodate limitations, rather than the condition itself.
Only the information necessary to determine what accommodation is required should be released, and this only to those who need to know. For example, a doctor’s note may say that the employee is required to attend treatment sessions two hours, once a week, during working hours. But the employer is not entitled to know that the treatment sessions are for cancer.
If the employee declines to provide, or does not allow the employer to obtain, the necessary information, this may become a factor when deciding if the employer has met its legal duty to co-operate in the search for a reasonable accommodation.