Ignoring this obligation could have costly consequences
Would you know if one of your employees was struggling with a personal issue? Would you be able to spot the signs of abuse, addiction, or mental health concerns? And, if you did, could you bring yourself to ask them about it? The duty to inquire is a lesser-known accommodation prevalent in Ontario law. Just as the name suggests, it dictates that an employer has a legal obligation to say something if they believe one of their employees is acting unlike themselves.
HRD spoke to Jonathan Borrelli, employment lawyer at Keyser Mason Ball, LLP and speaker at our upcoming Employment Law Masterclass, who talked us through the importance of this under-used obligation.
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“Essentially, if there are enough ‘red flags’ to reasonably lead an employer to believe that one of their workers requires accommodation, the employer has to politely raise the concern with the worker,” Borrelli told HRD. “It’s important not to make any assumption here. Don’t start diagnosing employees with alcoholism or addictions – that’s not the employer’s job. Instead, it’s about asking if they need any help.”
Employers cannot legally ask an employee about a diagnosis. However, they should take note of what’s happening in their workplaces and request appropriate medical documentation from employees. For instance, if an employee if an employee starts showing up late, or they are absent without reasonable excuse, and they are insubordinate or emotionally unstable in the workplace, that could lead to performance issues at work which would in turn engage the duty to inquire.
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“For example, if an employee was once a vibrant attendee meetings but, since the pandemic, they are now withdrawn or absent and their work has been affected, this could engage the duty to inquire,” added Borrelli. “Other indicators may be more obvious – such as routinely smelling alcohol on someone’s breath at an inappropriate time or suspecting they’ve been using cannabis on every break. In all cases, where employers have collected enough ‘red flags’, they should approach the worker privately to ask if the employer can help in any way or if they need access to other company resources.”
Borrelli suggested following up with an email to confirm that that “inquiry” conversation took place. If the employee refuses the employer’s requests for assistance, Borrelli says that should equally be documented.
But what happens if an employer sees these troubling indicators and chooses to ignore them? Would there be legal ramifications?
“The case law on the duty to inquire is clear,” Borrelli told HRD. “The legal obligation arises if it’s obvious to an employer that an employee really needs accommodation – even if they didn’t ask. Where there is evidence that the employer simply ignored their legal duty to inquire and rushed to judgement, it could be seen as failing in the accommodation process leading to discrimination. As such, failing in the duty to inquire could lead to liability on the employer for damages for wrongful dismissal and human rights.”
To hear more from employment law experts, register for HRD Employment Law Masterclass here.