Employers have a duty to accommodate that is governed by human rights legislation. The goal of accommodation in employment is to ensure that employees are not unfairly excluded if working conditions can be adjusted without undue hardship. This means that, as an employer, you must accommodate in a way that removes barriers to ensure equal opportunities, access, and benefits. To fulfill this request, you may need to request medical information from the employee.
Among other practices, accommodations support workplace diversity, equity, inclusion, and belonging efforts. But addressing a requested accommodation requires specific medical documentation—often more than just a doctor’s note. Let’s go over medical documentation and your rights and responsibilities as an employer in more detail.
What is a duty to accommodate?
Your duty to accommodate has two components:
- The procedural duty to accommodate (the process itself); and
- The substantive duty to accommodate (the measures implemented to meet the employee’s needs).
Failure to fulfil either component can lead to liability for you.
In a unionized workplace, unions take an active role in the accommodation process, sharing joint responsibility with the employer to facilitate and support accommodation measures regardless of collective agreements, unless to do so would create undue hardship.
What is undue hardship?
The duty to accommodate applies to the point of undue hardship. Some degree of hardship is expected, but the threshold of “undue” is based on several factors that vary among jurisdictions. If an accommodation request crosses the threshold, you can claim that you cannot provide the accommodation.
If you claim undue hardship, you must prove such hardship exists by providing facts, figures, and scientific data or expert opinion to support the claim. Some employers assume that accommodations are too costly to implement without investigating further. Statements without supporting evidence or based on speculation are insufficient proof of undue hardship.
Accepting requests in good faith
When an employee requests accommodation, the employer (and union representative, where applicable) should accept the request in good faith unless there are legitimate reasons for acting otherwise. This means accepting the request for accommodation at face value unless there is a legitimate reason where you would need to inquire further. A legitimate reason might include circumstances where clarification of the request or additional information is required in order to understand the employee’s limitations to perform their job duties. If appropriate, get expert advice to learn how to address unclear requests.
What do I need in order to meet an accommodation request?
You must have enough information to allow you to meet your duty to accommodate. The type of information that you may generally require an employee to provide to support their request includes:
- That the employee has a disability or medical need;
- The employee’s limitations or needs in the context of their job requirements;
- Whether they can perform the essential duties of the job, with or without accommodation;
- The type of accommodation needed to allow them to perform the job’s essential duties; and
- Regular updates about when they expect to come back to work if they are on leave.
Generally, you do not have the right to know:
- The cause of the disability;
- The specific medical diagnosis; or
- Details of medical treatments.
How and when should I request medical information?
Many employers receive medical documentation that gives little information that would help the accommodation discussion. For example, the traditional prescription pad notes rarely provide enough information or clarity for you to properly conduct an accommodation review. The procedural duty to accommodate is triggered regardless, and whether more information is required will depend on the specifics of the note.
In situations where the medical documentation provides little direction about the employee’s needs, you may request additional relevant information. This is a collaborative process involving you (the employer), the employee, and the healthcare provider. You may ask employees to provide additional and more in-depth medical information, up to and including a diagnosis. You must bear the cost of any required medical information or documentation, including doctors’ notes, functional abilities assessments, or other documentation you request from an employee.
What information can I request?
The information you request from the medical provider must:
- Be requested to help you understand the link between the medical needs and the requested accommodation; and
- Reasonably relate to the nature of the limitation or restriction and to the employee’s request for accommodation.
Where you can legitimately demonstrate a need for more information about the employee’s disability to determine an appropriate accommodation plan, it may be reasonable to ask for the nature of the illness, condition, or disability. For example, is it a mental health disability, a physical disability, or a learning disability? In such situations, you must be able to clearly justify why you need the additional information.
Functional abilities assessments
A functional physical or cognitive abilities form is the most effective communication tool for workplace parties. It is completed by the treating healthcare professional and provides you and the employee with a common frame of reference about the employee’s functional physical and cognitive abilities in the context of their role. You should consider using this type of document as a starting point when requesting medical documentation from the employee. The intention is to collect an appropriate level of detail from a healthcare professional reflecting medical evidence supporting any physical or cognitive capabilities and restrictions.
You might receive a functional abilities form or other medical document where the information is unclear, confusing, or otherwise missing. Remember that you are entitled to request reasonable medical information to facilitate an accommodation review. Seek to clarify medical documentation provided or pose additional questions. Be simple and concise. Provide this as a cover letter with a copy of the original document and have the employee take it to their provider for completion. Be clear on the requirement to have this information returned to you in a reasonable time. Keep in mind, though, that employees do not set their doctor’s schedules.
Employer limitations
As an employer, you are not expected to diagnose illnesses and associated restrictions nor to presume what the medical provider is recommending. You are also not entitled to substitute your own opinion for that of medical documentation provided by a doctor. Similarly, you must not ask for more medical information than necessary because you doubt the employee’s disclosure of their disability based on your own assumption of how a specific disability “should” affect the employee.
Employers have a duty to accommodate employees to ensure workplaces are accessible to all and that no employee is unfairly excluded. As an employer, you may request reasonable and relevant medical documentation to support an accommodation, but there are limitations to be aware of. Where an accommodation request is clearly understood, you must accommodate up to the point of “undue hardship.”
Our award-winning team of HR advisors can help you stay compliant and navigate the legislative nuances of the accommodation process. Discover how else Citation Canada, formerly HRdownloads, can assist you with compliance-related issues, employee wellness initiatives, diversity and inclusion planning, and more. Book a demo today!