ELISA SCALLI: Good morning. OK. I think we'll get started. We still have people joining, but I'd like to get started because we have a lot to cover today. Good morning. My name is Elisa Scalli. I am a partner practicing in Gowling's Employment, Labor, and Equalities group, ELE for short. And I will be your moderator for today's session.
Before we begin, I'd like to recognize that because we are all based in different cities and provinces across Canada, we are located in different traditional Indigenous territories, some of which are covered by treaties. I encourage all of us to take a moment to reflect upon and acknowledge the land upon which we are living. If there are Indigenous people attending this webinar today, please feel welcome to share your home community in the Q&A, so that we may also recognize you.
Good morning. On behalf of the Employment, Labor, and Equalities group, I'd like to welcome you to the second webinar of our 2023 webinar series. Today will we be discussing the duty to accommodate, and we will also touch upon when frustration of contract arises due to a disability.
To help us break this all down for us today, we have with us Khiam Nong and Alycia Riley. Both Alycia and Khiam are lawyers on our ELE team practicing exclusively in the area of employment law. Khiam practices out of our Waterloo office, but she just happens to be in Toronto today. And Alycia practices out of the Toronto office.
Something you might not know about Khiam and Alycia, Khiam has a passion for law but she also has a passion for dance and music. And she's always dreamed of becoming a musical artist. And she's going to be taking her first step towards realizing that goal and will be starting to learn guitar this year, we see. We'll see. I'm going to check in on you, Khiam, to see if that happens.
And while Alycia loves digging deep into her files, what she'd rather be doing is going on an archeological dig. Her love for archeology was inspired by her many hours of watching Indiana Jones. And I have to say I may have watched a few of those shows. So I'm going to have to look into those. Maybe I'll have a love for archeology too.
So before we begin our program, there's just a few housekeeping items that I'd like to go over with you. The PowerPoint will be made available to all the participants following the webinar today. This webinar is being recorded. You'll also be able to access the recording following the session. That will be posted on our web page. If you would like to view some of our earlier webinar, well our first webinar of 2023 and some of our webinars from last year, those are also available on our web page. And we will post the link to the web page in the chat for you.
Finally, if you have any questions throughout the presentation, the Q&A is open. So please feel free to add your questions to the Q&A. If the questions are not addressed throughout the course of the presentation, then we will be providing a written Q&A response following the webinar session today. And that will be sent out to all the participants.
Now just a reminder, this presentation is not intended to be legal advice. This is just a high level overview. It's impossible to cover all relevant details. So for specific advice, we advise to consult your qualified legal counsel before making any decisions or taking any action related to our topic today. So with that being said, I'd like to pass it over to Alycia.
ALYCIA RILEY: Thanks, Lisa. So we're going to start off today's webinar by talking generally about the Ontario Human Rights code. And so while we're focusing on Ontario, I know some of you may be joining us from other jurisdictions. Much of the same considerations will apply. But of course, if you're in a different province, you'll always want to be mindful of the legislation that applies where you are.
So to take a quick look at the code, the reason why we're looking at this is to really frame our thinking and understand where the duty to accommodate comes from. So when we look at sections 5.1 and 5.2 of the code, we see that every person has a right to equal treatment with respect to employment without discrimination because of and amongst many of the prohibited grounds is disability. We also see in section 5.2 that every employee has a right to freedom from harassment in the workplace, again because of disability. We can go to the next slide.
So I won't read the entire definition of disability under the Code. As you can see, it is very, very long. But what we want to do here is really understand that when we see this in the Code, the HRTO adjudicators, they take a very broad meaning and understanding of what a disability is. And so even a perceived disability, if applied under the Code, could constitute discrimination.
Now, having said that, the HRTO generally has held that a passing or a transitory illness, if somebody has the flu, for example, most likely will not constitute a disability under the Code. Section 11(1) and (2), this is where we start to see the introduction of accommodation and undue hardship language in the Code. So Section 11(1) tells us that if there is an objective standard, like a job description or a job posting that is not discriminatory on its face but results in the exclusion of a person who falls within a prohibited group, that is still discrimination, unless the requirement is reasonable and bona fide in the circumstances.
And so Section 11(2) tells us that the requirement cannot be reasonable unless the person's needs cannot be accommodated without undue hardship, considering the cost of outside sources of funding, health and safety requirements, and so forth. If we can go to the next slide, please. Thank you.
And so, again, Section 17, we're seeing similar language here again with respect to disability. So when we look at this language, we need to understand that all of this really frames our thinking and frame the analysis. There is also a Section 17(3) that says, "In determining for the purposes of subsection (2)"-- which is listed there on the screen-- "whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by regulations." There are no regulations that exist currently.
So what that means is that when we're looking at whether Section 17(2) is met, those are our considerations that we're looking at. So, again, it's cost, outside sources of funding, if any, and health and safety requirements, if any. So now that we've gone through a quick overview of the Code, I'm going to pass it off to Elisa to discuss the duty to accommodate.
ELISA SCALI: Thank you, Alycia. So what I'm going to do now is just to give you a very brief high-level overview of the duty to accommodate because what we do have planned later in the session is to go through a fact pattern with you that will follow the process of accommodation and all the twists and turns that you might encounter during that process.
So the duty to accommodate, a disability arises where an employee has restrictions and limitations due to a medical condition that would prevent them from performing the essential duties of their position. And the key point here is that the accommodation is a need or a requirement due to that disability. And it's not a preference.
For example, Jane provides a medical note that confirms she cannot sit for extended periods of time due to a medical condition that she has. Her position requires her to spend the entire day working at her desk. Her doctor confirms she can work a full day, but that she needs to alternate between sitting and standing. So as the employer, you provide accommodation by purchasing her a sit-and-stand desk. It's a need, a requirement for Jane.
On the other hand, you have Julie that says she gets restless while she's sitting at her desk. And she wants to have the opportunity to sit and stand throughout the day. In that case, that is a preference. There's no medical need to stand. So in that particular case, the duty to accommodate would not arise.
Now, once you're aware of a need to accommodate as an employer, you have a duty to seriously consider how the employee can be accommodated. A failure to give proper consideration to the issue of accommodation, including what, if any, steps you can take to accommodate the need, if you fail to do that, then that would amount to a failure of your duty to accommodate.
Now, each situation has to be assessed on their own individual facts. This is a process that takes place. And one size does not fit all. You have to look at the individual needs of the employee and assess what accommodation can be provided to that employee. Next slide.
Now, as part of this process, the employee does have to be involved. Communication and involvement are key. This is a two-way street.
Once the employee brings the need for accommodation to the employer's attention, that's not where their involvement ends. They have to be part of this process. They have to facilitate the search for accommodation.
We're not suggesting that they're the party that provides the solution because, obviously, the employer is going to be in the best position to determine how the person can be accommodated without causing undue interference with the operations of your business.
But we still need some input from the employee because what we are doing is we are assessing what the individual needs are of that employee and how can we accommodate those needs so that they could perform the essential duties of their job. And we need the employee to provide us with information to be able to assess those needs, most importantly, medical information.
And then the next step for the employer is to determine, what are the essential duties of the job? You have to parse out what's essential and what's nonessential and determine how you can accommodate that employee so that they can perform the essential duties of their job.
Now, the standard for accommodation is reasonableness. It's not perfection. So as long as you can provide a reasonable option that does accommodate the employee's needs, then you will have met your duty to accommodate. And the employee cannot expect the perfect accommodation either.
For example, an employee can only work a reduced workweek because of their medical condition. The employee would like to work Tuesday, Wednesday, Thursday. But the employer, for operational reasons, would like the employee to work Monday, Wednesday, and Friday.
If the schedule of Monday, Wednesday, and Friday meets the needs of the employee, then that would be considered reasonable accommodation. And the employee has an obligation to agree to that accommodation and to facilitate the implementation of that accommodation plan. And once you've offered the reasonable accommodation, you've just charged your duty to accommodate that employee. And it's up to them to help follow through with the plan.
Now, you can only avoid your obligation for accommodation if there is no accommodation available to allow that employee to perform the essential duties of their job or another job that you may have available. You don't need to create a job. You don't need to parse together duties to create a new position. So if there is no accommodation available and you've done a thorough search, and you've gone through the process, then you've done what you can do in that scenario.
The other situation that would allow you to-- or sorry. The duty to accommodate is to the point of undue hardship. So some hardship is going to be expected. But it's only if it's undue hardship, that the accommodation will not need to be provided. So in that particular case, you would not need to provide the accommodation.
Now, this will be up to the employer to prove that you do have undue hardship, or the accommodation will cause you undue hardship. And in order to establish undue hardship, there are only certain considerations that will be taken into account. Things like business inconvenience, employee morale are not going to be relevant considerations as to whether the accommodation will cause undue hardship.
What will be considered is cost, for example. If the cost would be so substantial that it would alter the essential nature of your business or it would impact the financial viability of your business, you may be able to prove undue hardship. But that is a very high threshold. And for some medium- and large-sized employers, it may be difficult to prove that.
And in order to prove that, you would have to provide objective evidence. You may have to provide financial statements and other type of financial information to establish that the cost would be that substantial.
The other consideration if cost is an issue is, are there outside sources of funding available? So the employer would have to determine and consider, is there outside source of funding available that we can obtain that will help us make this accommodation possible? Similarly, employees also have a duty to avail themselves to any available sources of outside funding that would reduce the cost or the expense for their own accommodation.
Finally, an employer may consider health and safety. And the consideration here is, is there a high probability that substantial harm may occur if we implement this accommodation, whether it's harm to the employee that's being accommodated? Or does it pose harm to other employees in the workplace? But it has to be probable, and the harm has to be substantial.
If it's not a serious risk and it's not likely to occur, then it's likely not going to amount to undue hardship. And, again, in proving undue hardship, you must provide real and objective evidence of that hardship. You can't base it on speculation or some unsubstantiated concern of what might or could occur if the person is accommodated. Next slide. I'd like to turn it out over to Khiam just to review some of the best practices when accommodating.
KHIAM NONG: Thanks, Elisa. In the first bullet, if you have ever spoken to an employment lawyer about many, many situations, this is something that you'll have heard before. It's really important to document everything.
If you have a meeting, take notes. If you have expectations to share, send an email. It's just really important later on that you are able to demonstrate to an adjudicator that you have taken steps to satisfy your duty to accommodate. And the best way that you can do that is with documentation. So that's a really, really important best practice that I want you to consider and put into practice on a regular basis.
It's also really important that employers accept an accommodation request in good faith, unless there's evidence that the request is not genuine. I think that in my experience, as human beings, our natural tendency is to be skeptical from the get-go. But that's going to be an obstacle to satisfying your duty to accommodate if you approach the situation with skepticism. So always accept an accommodation request in good faith and demonstrate to employees that you're there to support them.
Only ask for information that is reasonably necessary to determine accommodation options. It's really important that you don't ask for a diagnosis. As employers, you're entitled to prognosis. But never ask for a diagnosis. If an employee decides to share that with you, that's fine, but do not request it.
Generally, the rule, too, is that-- I know that most of you probably get medical notes from the outset that are one- or two-liners. From the outset, I think that's fine. But the longer that an employee is off-- my general rule is that the longer the employee is off, the more information that you're entitled to.
And so you may want to be asking them for more detailed medical information. Of course, it depends on every situation. But you may want to provide a functional abilities form. At the end of day, we're going to talk a little bit more about that during our fact scenario, which will allow you to make a better determination about what the duty to accommodate is going to look like for a particular employee. But the longer they're off, the more information you're entitled to.
In addition, you need to respect the privacy of the person asking for accommodation and share information only when necessary. And that may mean that their manager and HR and maybe your occ health and safety person has access to that information from the get-go. And if it's necessary to include more people as you go further along in the process, then you will do so.
But from the start, bear that in mind that the employee's medical information is private information. And you only want to share that with a small group of people.
Take an active role in looking at an accommodation solution that meets an individual and group needs. And so that's going to mean that you, a manager, HR, or maybe a health and safety person is going to be reviewing the workplace and assessing the workplace to figure out what's going to work for the team. But you have to consider what's going to work for this person. And that's going to mean active discussion between the key people in the workplace in order to come up with those solutions.
Deal with accommodation requests as quickly as possible, even if it means creating a temporary solution while you develop a long-term solution. We're going to talk in the fact scenario about the meetings that are necessary between the different key players in the workplace. And sometimes that does take time. Sometimes it takes time for you to figure things out to assess different aspects of the workplace.
But you can't leave an employee hanging. If they brought in a medical note that says they require accommodation, every day that you take, the longer that you take, the more they may be suffering. The more they may be suffering. It's also not going to make you as an employer look like you're getting on the request quickly. And so a temporary solution may be the appropriate solution depending on the case.
Develop an accommodation plan. Every time that you are providing an employee with an accommodation plan, it should be an individual accommodation plan that is a written plan. In fact, this is also a requirement under the AODA.
So if you have not developed a written accommodation plan, this is a part of that very first bullet that I talked about how important it is to document. I know that lots of employers have standard individual forms. But you've got to bear in mind that accommodation is going to be different for each individual case. And so you're going to have to tailor that to each situation.
That accommodation plan, you should be sharing with the employee after you've made it. And you should be consulting with the employee about their accommodation. We're going to talk about that a little bit later too. And Elisa has already covered the last bullet.
You should be covering the cost of accommodation. Oftentimes employees will come to you and say, look, I'm going to fill out this functional abilities form. But my doctor is asking for $100.
$100 in the grand scheme of things is completely reasonable for you to be covering. It's not necessary. There's not legislation that says that you have to cover the cost of a doctor filling out a form. But it's the reasonable thing to do in the circumstances. And we recommend that you do cover the cost of accommodations. We're going to go now into our fact pattern. I'm going to hand this over to Elisa.
ELISA SCALI: Thanks, Khiam. We'll start with our first fact pattern. Kara is a new employee. She began work at the company a few months ago.
Two weeks after her start date, Kara called in sick saying she had the flu. She was absent for one day. Following week, she called in sick saying that she had food poisoning and missed another day of work. Three weeks later, Kara called again saying that she just wasn't feeling well. She missed another day of work.
Kara's manager is livid about Kara's unreliability and asks HR if she can be let go because she is still within her probationary period or, at the very least, can the company request doctor's notes to confirm all of the time she has taken off. So I'd like to ask, Alycia, what--
ALYCIA RILEY: Oh, sorry. Go ahead, Elisa.
ELISA SCALI: Go ahead.
ALYCIA RILEY: I quite like this question because as I was mentioning earlier, generally speaking, the Human Rights Tribunal of Ontario would not consider a transitory illness, such as the flu or food poisoning, generally not considered a disability under the Code, again, not in all cases, but typically. But we have to bear in mind with this one that Kara's absences actually would fall under protection under the Employment Standards Act, 2000. So she's entitled to unpaid sick days under the ESA.
And so we have to be mindful of the fact that we're not only looking at this necessarily from a human rights code accommodation disability lens, but we also need to keep in mind employment standards legislation, because if she falls within that entitlement, you cannot take any steps to either discipline her or terminate employment or anything like that because that then would be a reprisal under the ESA.
ELISA SCALI: Well, what about the fact that she's in her probationary period? Does that impact how the employer deals with this?
ALYCIA RILEY: No. So the probationary period will not be of any assistance at all in allowing an employer to terminate employment if the employee is exercising their rights under employment standards legislation or any leaves of absence under the Code.
ELISA SCALI: Thank you. OK, let's move on to our next fact pattern. So now what we're going to do for you, we have one fact pattern that we're going to build on. And we're going to go through the accommodation process from start to finish.
So the employee in this scenario is Sunil being employed with the company as a project coordinator for two years. Sunil's performance has generally been good. But his manager has started to see a decline in his performance over the past few months.
Since the manager noticed that he seems slightly disheveled, there are circles under his eyes. He also caught him looking like he was about to nod off once or twice during team meetings, Sunil's manager's a bit concerned and comes to you asking for guidance. So, Khiam, what would you be advising Sunil's manager based on this information that he has?
KHIAM NONG: Firstly, depending on who you're speaking with, be careful of how you approach them. Try not to tell somebody that they're looking really disheveled in a morning. So that's my first comment.
My second comment is that employers under human rights legislation, you have a duty. There's a duty to inquire. So you have a proactive obligation to make reasonable inquiries of an employee.
If there are reasonable grounds to believe that employee is suffering from a medical or other issue that may require accommodation, so Sunil's manager in this case, preferably HR or maybe Sunil's manager and HR together should be having a conversation with Sunil to make inquiries about what may be resulting in his appearance and sleepiness at work. Again, I caution you about the appearance piece. But the fact that he is nodding off at work and looking tired, those are concerning things, and so have that conversation.
And, of course, during that conversation or immediately after that conversation, document it. This needs to be handled delicately with respect to an employee's privacy. Make sure that this type of conversation is happening in a private space. It shouldn't be happening in a public setting where other employees are around and may be engaging in gossip. So an office, a boardroom would be the appropriate space.
So now the employer is on notice that Sunil may have a medical issue impacting his ability to work. And so that's how in this particular-- and this may be addressed in the next slide. But depending on what the employee says, it may be appropriate to send them home from work that day. And if that's the case, then you should be paying for cab fare or an Uber or whatever is going on that day.
But if the employee says, no, I just didn't sleep that night, I'm just having a day, then you make the call, depending on the circumstances of the case. If he's literally not able to stay awake, you have the discretion to determine whether or not he can work safely. And you'd send him home that day. But, again, the first step there is to make inquiries.
ELISA SCALI: Thanks, Khiam. So let's see what the manager does. Let's go to our next slide. So Sunil's manager asks Sunil how he's doing. Sunil replies that he's fine, just experiencing some insomnia, and has been struggling to catch up on sleep.
His productivity continues to drop. He misses a big project deadline. When Sunil's manager delivers the feedback, he finally admits to her that he's been struggling due to some medical problems and was not being honest when they spoke last week. Sunil's manager comes back to you for more guidance.
So I'm going to pose some questions to each of you. And I'd just like to go through this how you would guide the manager through this type of situation. So Sunil's manager comes to you, Alycia, and is upset because Sunil checked off on his employment application that he could do his job without accommodation.
And Sunil is engaged-- he thinks this was fraudulent and dishonest. Why didn't he tell us? So how do you reply to the manager?
ALYCIA RILEY: So it's completely irrelevant. Not only was this two years ago, but many employees do fear about not being able to secure employment if they disclose medical conditions. And so employees don't have any positive obligation prior to being hired to say, yes, I have a disability. I need accommodation. The onus is always on the employer to let the employee know if you require accommodation, please let us know, and we will make appropriate arrangements.
ELISA SCALI: So Sunil's manager still upset, though, that he hasn't revealed this information. He thinks that Sunil lied to him two weeks ago when he asked him how he was doing and if there was anything wrong. And he wants to know if the company can discipline him because he lied. Khiam.
KHIAM NONG: The answer to that is no. When we looked at the best practices slide, I think it was the second bullet that was to take all accommodation requests in good faith. And it's completely understandable. We're all human beings. And not everybody wants to talk about their issues and their health issues.
And so it's actually very common for employees to be apprehensive about disclosing things such as an illness. Or maybe it's a mental health issue. Who knows what's going on with Sunil from the get-go? And so that's not a misrepresentation in itself. And Sunil's manager should be taking this information out in good faith.
ELISA SCALI: Thank you. And Sunil's manager's concern that Sunil hasn't really come out and asked for any kind of accommodation and is wondering whether, do they have to accommodate? He hasn't asked for any accommodation. Alycia.
ALYCIA RILEY: So also irrelevant, Elisa. So Khiam stressed this enough. But an employee does not need to use any magic words to request an accommodation in order to trigger the interactive accommodation process. Once an employer is on notice that there may be an issue, a medical issue affecting an employee's ability to do their job, you're engaged, and you have to accommodate appropriately. You simply cannot turn a blind eye to these types of issues.
Now, you would need to explore further to determine whether Sunil is able to perform the essential duties of his position, whether it's with or without accommodation. That type of analysis often, for managers, can be very challenging to undertake, although we don't typically recommend it. It should always be done in consultation with HR and, likely, HR who will then consult legal counsel.
ELISA SCALI: And Sunil is also confused because he doesn't know what the medical condition is that's causing these issues and feels like Sunil should tell him what the medical condition is. I think we heard Khiam in best practices say that medical diagnosis is not something that an employer is entitled to. You're only entitled to know what the restrictions and limitations are as a result of a medical condition in order to be able to assess what the accommodation needs would be.
So now that we're at this point where we know that he's struggling, we know he has a medical problem. Khiam, what would be the next steps?
KHIAM NONG: The next step is to ask Sunil for medical information now that we're on notice. So Sunil has an obligation and to participate in the accommodation process by providing his employer with medical documentation that is sufficiently detailed so that as the employer, you need to know A, is there a medical condition that requires accommodation? What's the expected duration of the medical condition requiring accommodation?
What are the accommodations suggested by Sunil's health care provider? Will Sunil require time off from work to seek treatment? And will Sunil be required to take any medications that might impair his motor or cognitive functions? So we need to ask Sunil for this medical documentation now.
ELISA SCALI: All right, so let's move to the next slide. We ask Sunil for the medical note. And this is the medical note that the employer receives. We note that it is from a walk-in clinic.
And the medical note states, "Sunil is under my medical care. He has numerous medical issues that limit his ability to perform stressful work and meet deadlines. He requires a reduced schedule, extension on project deadlines, and appropriate supervision."
So Sunil's manager comes to you with this medical note and says, what do we do next? Now, looking at this medical note, Alycia, would you say this is sufficient for the employer to be able to assess Sunil's needs?
ALYCIA RILEY: No, it's too vague. This note isn't sufficient to, first, satisfy the employer that he has a medical condition requiring accommodation. But it doesn't provide us with what the information that we need to really understand the options for accommodation.
So for example, when we look at reduced schedule, OK, well, does that mean three days a week? Does that mean four days a week? Does that mean one day a week? We have no idea. On extensions on project deadlines, same type of ambiguity; appropriate supervision, again, also very ambiguous.
So a lot of employers would be left scratching their heads with a letter like this. So the next step would then be that HR should be advising of the deficiencies in this medical note, preferably in writing, going back to our point earlier that you should document absolutely everything, and advising the doctor that the company requires more detailed information about functional abilities and restrictions.
And so as part of that package that gets presented to the doctor, almost always, we recommend that an employer use what's called a functional abilities form. You may have a standard form that's implemented in your workplace. But what that does is it helps us get around those preliminary notes of, you know-- the vague notes, the ambiguous notes, where it's just, yep, they need to be off work, or yes, they need a reduced schedule.
And we're left thinking, OK, well, shoot. We have no idea how to handle that. So it helps to jumpstart that process in better understanding what the employee really needs.
ELISA SCALI: All right, and is there any concern that this note comes from a walk-in clinic, presumably not from his regular family physician, Khiam?
KHIAM NONG: I'm generally not fussed about that. There are lots of people who don't have a regular family doctor. And so many people, that's their only option, is to go to a walk-in clinic.
And sometimes my family doctor isn't available to see me. And if it's an emergency, many people just go to a walk-in clinic. That doesn't bother me at all.
ELISA SCALI: And what if the note came from a chiropractor or naturopathic doctor, would that cause concern in terms of the medical note?
KHIAM NONG: It would be a red flag for me if it came from a chiropractor. If Sunil had originally said that he was having back issues or some kind of issue that it would be appropriate for a chiropractor to see, that would make more sense. But in this particular case, I think the note is more appropriately from his general family physician or other physician other than a chiropractor or a doctor.
ELISA SCALI: And so just on that medical note again, what if it didn't look legitimate for some reason? The handwriting looked messy. The signature looked suspect. It came from a medical office from Oshawa when you know the employee lives in Toronto area. What would you do about that?
KHIAM NONG: I don't know about you, but I've barely ever been able to read medical notes from doctors. They all have messy handwriting, unless it's typed out. Strange locations, I've seen medical notes from other countries. I've seen medical notes that don't look legitimate.
And what I usually do is I just google it. I google the address. I google the doctor's name and try to figure out if this is legitimate. There would have to be red flags to do that. But this is also a part of accepting an accommodation request in good faith. And so yeah, google it. Google is our friend.
ELISA SCALI: Agree. There may be situations where this could arise. So if you do have reasonable suspicion, reasons why, then it would not hurt to do that.
KHIAM NONG: And I'm sorry. Just to add a couple of things, if Google doesn't come up with anything, you can always scan the document to the physician if you have a number, if you have an email. You can also look up a doctor's name at their regulatory body and identify if a doctor is medically licensed to practice in Ontario and in other provinces too. So there's research that can be done if you're very concerned about the medical note.
ELISA SCALI: OK, so in this case, we are concerned about the medical note not because it looks illegitimate, but because it doesn't have the information that we need in order to properly assess the accommodation needs. So if we can move to the next slide, we have asked Sunil for a second medical note, a better medical note so that we can assess his needs. And this is the medical note that he brings in, this time, from his family physician.
"Sunil is under my care and is currently undergoing testing for various cognitive deficiencies. Please let him work from home so he can work in a less distracting environment. He needs to have additional feedback from his supervisors on projects and cannot work more than 40 hours a week. Those restrictions will be re-evaluated during his next appointment in 30 days."
So now you have this new medical note that has a little bit more information. What do you do next, Alycia?
ALYCIA RILEY: So looking at this note, I would be satisfied. It's coming from an appropriate health care provider. It's coming from the family physician. There is enough detail there that we now understand specifically what those needs are. And so I would say the company is now in a position where it needs to assess what the options for accommodation are in light of the information that's been provided.
ELISA SCALI: OK, and Sunil's manager's a little anxious, and he says, what if he gets better faster? So they're evaluating in 30 days. What if things progress at a more quick pace? Can we follow up in two weeks? And what would you say to his manager, Alycia?
ALYCIA RILEY: So, certainly, as everyone who participates in this process can understand, it's never a static situation. It's always very fluid. And so the employee may improve more quickly, or their recovery may not be as quick.
So you can advise Sunil's manager that you can ask for a new note prior to the expiration of the 30 days. But I would say only if Sunil is advising that there's been a change in his condition, or you observe an obvious change in condition. But, really, it should be the employee advising the employer, I'm feeling better. I think I can take on an alternate task or perhaps change my schedule.
ELISA SCALI: And I think that's something we would have to communicate to the employee. And we're going to talk about accommodation plans further down in the fact pattern. But that would be a typical clause that you would include in the plan, which alerts the employee to notify them if circumstances change.
ALYCIA RILEY: Absolutely.
ELISA SCALI: OK, so let's move on to the next slide. We're going to just talk about evaluating a request for accommodation. And so, Khiam, I'll start with you. Who would you typically recommend that you would involve in an accommodation request?
KHIAM NONG: Certainly, the appropriate manager, HR, and, if applicable, your occupational health and safety specialist.
ELISA SCALI: And what's the best way to begin making an assessment for accommodation?
KHIAM NONG: The internal team that I just described should be sitting down together and having a collaborative discussion to assess the workplace. Sometimes I've seen documents where everybody is having email discussions. I just don't think that that's an efficient way to do it.
And I think that having discussions through email about an accommodation plan leaves gaps. It's not collaborative enough. And so I recommend a meeting. And if you have a job description, make sure that you reference the job description and your discussion about an accommodation plan for employee's health.
ELISA SCALI: And what if you come up with a plan, but the manager still has concerns because the manager wants Sunil to be in the office? Alycia, how would you deal with that?
ALYCIA RILEY: So we have to keep in mind that the company's legal duty is to provide reasonable accommodation to the point of undue hardship. It is a very, very high bar. So the assessment options for accommodation can often turn on whether aspects of the job are essential to the employee's work.
In this case, Sunil's role is a project coordinator. Is it essential that Sunil be in the office? Most likely not. And we have to keep in mind also that in light of the pandemic, we've seen a pretty significant shift in employees' abilities to properly work from home. And so I think that the manager's insistence that he be in the office would be even harder to make out here.
ELISA SCALI: And so you mentioned essential duties. We'll just talk about that. What evidence would you require to determine whether a duty is or is not essential?
ALYCIA RILEY: So the evidence is always job dependent. I find job descriptions and those types of documents to be particularly helpful, not always definitive, because an employee's actual daily work may not correspond perfectly with the job description. And so that's why you always want to keep the manager or supervisor involved because they're going to have a better understanding day to day how that job is actually being performed.
So when we're looking at whether a particular task or duty is essential, an employer can look at how often is the duty performed. How much time do you spend on each duty? Does it fit within the other aspects of the job that are being performed? How would the job change if you remove that duty?
And so those are some of the general criteria that you look at. But the legal test for establishing that a job requirement is an essential duty is, was the duty adopted for a purpose or goal that is rationally connected to the function being performed? Was the duty adopted in good faith, in the belief that it's necessary for the fulfillment of the goal?
And is the duty reasonably necessary to accomplish its purpose or goal in the sense that it is, again, impossible to accommodate the claimant or the employee without undue hardship? Sorry. Go ahead, Elisa.
ELISA SCALI: I was just going to comment that it's a process to go through to determine what is essential and what is not. It's not just a decision that you can make in a split second looking at a job description. You really have to take your time to consider it.
Now, I just want to ask Khiam a question. We often hear from employers, this is going to impact the morale of the team. They're going to feel like Sunil's getting special treatment because you're not telling everyone the reason why necessarily that he's being accommodated. So how would you deal with this concern that the manager may have?
KHIAM NONG: There's two people that you need to deal with in this situation. It's Sunil and the manager. So with respect to the manager, a manager is going to be concerned about the morale of his team. So you need to be sympathetic to Sunil's manager.
But you have to explain to him that Sunil's colleagues do not have a right to know about Sunil's medical information. That's private. If those employees required accommodation, then they wouldn't want other people knowing their medical information either.
And so it's about finding the right words for Sunil to use to communicate with his team. Thank you for raising your concerns. Many of the workplace issues encountered by employees are personal. It's a company's policy to respect employee privacy.
Just as you wouldn't want me to discuss your personal situation with your coworkers, I can't discuss Sunil's situation with you. And then politely instruct the employees to go back to work. I think that if you give the manager words that he can use, he'll feel more comfortable. He or she will feel more comfortable talking to his team. But you also have to be sympathetic to the manager's situation as well.
ELISA SCALI: And I think, in this case, the managers need some guidance. And we can't let the managers run with this, for lack of a better term, in order to ensure that we're taking all the appropriate steps. Now at this point, we're looking at what the accommodation needs are. We're addressing concerns the manager might have. When do you get Sunil involved in the discussion?
KHIAM NONG: I spoke earlier about a collaborative meeting between HR, occ health and safety, and the manager. Out of that meeting, hopefully, what you've come up with is an accommodation plan that you can present to Sunil. Perhaps you will have a couple of options to present to Sunil, and perhaps you just have one if there's only one that you can come up with.
Whatever you have at that point, you would involve the employee. You would involve Sunil and present the accommodation plan to him and allow him an opportunity to provide comments.
ELISA SCALI: And the accommodation plan, I would recommend would be in writing. Alycia, can you cover what you would include in that accommodation plan?
ALYCIA RILEY: So as Khiam was mentioning earlier, under the AODA, there are requirements in terms of what is supposed to be an individualized accommodation plan. So, again, always in writing. You should be providing a summary of the restrictions, so not necessarily the full length of the medical note, but highlights of exactly what the functional abilities are, the accommodations that are required, and what work is available that fits within their restrictions.
So it should be a document that you can use as a guide when you're meeting with the employee to help them understand exactly the process that you have gone through to present the accommodation offer to them.
ELISA SCALI: And I think we touched on this earlier. But at this point, we have enough information to put in place our accommodation plan. At what point would we request more medical information?
And I think what we talked about was if circumstances change, if either the employee comes to you and says, my circumstances are changing. My accommodation needs to be modified, we would need medical information at that point in time. Or perhaps there's an observation made by the employer. And perhaps further information is requested at that time.
ALYCIA RILEY: Yeah, and the only other thing I would add to that is that this particular medical note said reassessment in 30 days. So right around that 28, 29 day mark, what I would do is maybe connect with Sunil and say, hey, your restrictions are going to be reviewed again. Do you have any plans to meet with your physician any time soon? You can check in with the employee to know if there's going to be any further medical information forthcoming.
ELISA SCALI: So now we've got the accommodation plan in place. Sunil follows through with the accommodation plan. And he's ready to come back to the office. If I could have the next slide.
So return to the office-- 60 days has passed since Sunil's accommodations were put in place. He says he's feeling much better and no longer needs any accommodation. He'd like to return to the office full time as he misses his colleagues and collaborating with them in the office.
Now, he's been away for 60 days. Do you just let him come back to the office? Or is there another step involved before he is permitted back, Alycia? Or sorry, Khiam. I'd like to ask Khiam.
KHIAM NONG: Always obtain medical clearance. Never take the employee's word for it.
ELISA SCALI: OK, so we would need more medical information to ensure that the employee is fit to return to work.
KHIAM NONG: That's right.
ELISA SCALI: So after we obtain the medical clearance, Sunil has now returned to the office. A week later, he misses big deadline and was called out by his manager for this during a team meeting. Later in the day, a colleague found Sunil crying in a break room because he felt singled out on the account of his disability. Sunil's manager wants to know if the company can now implement progressive discipline because of Sunil's error in missing the deadline. Khiam.
KHIAM NONG: In this situation, I think it's obvious that there are reasonable grounds to conclude that perhaps his medical situation has not improved to the extent that Sunil originally thought. So progressive discipline is not the step that we should be taking right now. It's too soon.
We're going to have to ask the employee for more medical information and to talk to them about it. If the discussion is going to involve a discussion about his performance, that criticism or that discussion-- it shouldn't be a criticism. It should be hey, Sunil, now you've missed a deadline. Is everything OK? Like, we're right back to the duty to inquire again.
Make sure that that meeting is held privately, not during a team meeting, regardless of whether any employee has sought medical accommodation or not. Every performance-based discussion should be held privately. But yeah, we're going to need to have another meeting with Sunil to make inquiries about his situation and probably to seek more medical.
ELISA SCALI: And, Alycia, how would you go about seeking the medical information? Today, you've received notes that identify the restrictions and limitations. What other method could you use to get more detailed information?
ALYCIA RILEY: So going back to what Khiam was talking about in terms of having that conversation with Sunil, I think it would be, at that time, a good idea to present Sunil with a medical questionnaire or a more comprehensive Functional Abilities Form When the employer does require more information to better understand what accommodations are necessary. But what we want to be mindful of is, in this particular case, we know that it's potential cognitive issue. And so we want to make sure that the medical questionnaire is going to give us the information that we actually need.
So if we're giving a standard FAF form that says, can they sit and stand, that's not the nature of restriction that's been identified. So we want to make sure that we're appropriately tailoring the medical questionnaire to the particular issue that the employee has informed you about.
ELISA SCALI: Thank you. And I would add to that too. On the medical questionnaire, make it clear that you're not asking for a medical diagnosis. Even though the questions don't suggest that you are, we want to make it clear that we're not asking for that information. So next slide, please.
So you advise Sunil that the company requires such a functional assessment form to be completed by his physician. The next day, he advises you that he can bring a note in. But in order to get that form completed, the doctor recommends that he first undergo more cognitive testing. And that's going to cost $2,000 to complete. Sunil would like the company to pay for the testing since HR is the one demanding a new note. Sunil also questions why HR does not trust him to know his own needs.
Now, we heard Khiam say earlier there's a legal obligation to pay for a medical note. But, normally, the medical note is $20, maybe sometimes up to 100. But, here, we're talking about cognitive testing. That would be $2,000 to complete. Khiam, what would you say or respond to the Sunil in this scenario? Or sorry. Alycia, what would you respond to Sunil in this scenario?
ALYCIA RILEY: So, I mean, generally, as you said, Elisa, there's no legal requirement to pay for additional medical testing documentation unless it's the company's decision to send an employee, for example, for an independent medical examination. As a general practice, you're absolutely right. Like, a human rights claim, it's not worth a $20 doctor's note.
When we're dealing with a cost that's more substantial, $2,000 for cognitive testing, I would encourage the employer to maybe look to their benefits insurer. There may be some form of coverage that's available under that particular plan. Sunil has an obligation to provide sufficient medical documentation to the company to support the request for accommodation. And it is appropriate for them to request that.
So we would want to better understand why those costs are necessary to be incurred. And we'll discuss that on the next slide as well.
ELISA SCALI: Right. Next slide. So the note comes in from Sunil's physician. And the new note says, "Sunil cannot be given any projects with unreasonable deadlines. He must be permitted to set his own deadlines due to his cognitive limitations. He also cannot receive any negative feedback or criticism of work in front of his peers due to his anxiety.
He should be permitted to work from home indefinitely. And the company should assign him a new manager. Recommend the company give three months to re-establish good performance. These restrictions are permanent.
Now let's break down this medical note and let's look at each point. And I'm going to ask you for your comments on-- so I'll start with Khiam. What are your thoughts on the doctor noting that one of Sunil's restrictions is that he can't work on projects with unreasonable deadlines, and he must be permitted to set his own deadlines?
KHIAM NONG: We're going to have to follow up with Sunil's doctor here. And reasonable deadlines is too vague. And so you're going to have to follow up with Sunil's doctor to ask for clarification about what he considers to be an unreasonable deadline and, conversely, what he considers to be a reasonable deadline.
In my view, the provision of deadlines are likely going to be an essential duty of Sunil's job. And, therefore, this is an accommodation that you would not be expected to meet-- like, to take deadlines away, I mean. But setting reasonable deadlines is perhaps an accommodation that an employer can satisfy. And so that's why it's important to get clarity from the physician here.
ELISA SCALI: And, Alycia, what would you say about the doctor's comment regarding not providing negative feedback in front of peers and the need to work remotely on an indefinite basis under the direction of a new manager?
ALYCIA RILEY: So, I mean, not receiving negative feedback or criticism of work in front of peers, that's just good management. That's not something that you should have to consider in respect of an accommodation. It's really just a matter of being a good manager and not doing that to any employee in the workplace. So, of course, I do think that that's something you should be able to accommodate very easily.
Working from home and definitely something-- have to be considered if it poses undue hardship. Again, in his role as a project manager, it may very well not. He may be able to work entirely remotely.
You would still need to establish on an objective basis if you do require Sunil to come into the office sometimes or to go to various client sites. You would need to establish that that constitutes undue hardship on an objective basis if you're going to be basing your decision on that.
And assigning a new manager may be an appropriate accommodation in some circumstances. But we should also be trying to understand why is that request being made. So is the manager potentially engaging in bullying, harassment? If not, then the accommodation is not legally required.
But you should also be discussing with the manager circumstances that there may be situations the manager is either consciously or unconsciously doing, where they are actually aggravating that employee's medical condition. And so if you have that conversation, it may be a series of very small changes, that can have a big impact. And then that way, you're taking care of that concern as well.
ELISA SCALI: And the doctor is also commenting here that he's giving a recommendation to the company to give three months to Sunil to re-establish his good performance. What are your thoughts on that and the employer's legal obligation, Khiam?
KHIAM NONG: The requirement to provide him with three months to show improvement, it's not necessarily a legal requirement. But I think that you should view this as good evidence that it's the doctor's medical opinion that it may take him three months to start showing improvement. You don't however, have to allow him to continue working for three months if he's making errors.
And so, rather, you need to view the situation, review the situation, assess the situation. And consider maybe there needs to be a change in the accommodation plan or maybe consider whether he needs to go on a leave of absence.
ELISA SCALI: OK.
KHIAM NONG: This is the time for an employer to be creative. But that's going to depend on your assessment of all the factors and how he's performing and all of that.
ELISA SCALI: And, again, we talk about this being a process, communication, ongoing assessment. It's not once you've established the plan, it is what it is, and you leave it.
KHIAM NONG: That's right. It's organic.
ELISA SCALI: OK, next slide, please. So now we just like to touch upon frustration of contract where you have a situation where an employee has a disability. It's a permanent disability. They can't perform the essential duties of their job. Alycia, can you walk us through frustration of contract?
ALYCIA RILEY: So just to that first bullet point, Elisa, as you mentioned, it's a circumstance that occurs outside the control of either party. So when a frustration occurs, it's because performance of the employment contract has become impossible. Now, generally, the employee, if they're unable to perform the essential duties of their position and there's no reasonable likelihood of them being able to do so, either returning to work or performing those essential duties within a reasonable time, then the employer may take the position that the employment contract has been frustrated.
However, we have to also keep in mind that that duty to accommodate to the point of undue hardship is still very, very high. And so you're going to be looking at a long period before you can reasonably assert frustration of contract.
So when frustration does occur, the definition of itself means that an employee would actually have no entitlement to common law reasonable notice. However, they are still entitled to their minimums under the Employment Standards Act. So that's something you want to be mindful of as well.
It's only considered reasonable for human rights purposes frustration of contract if the employer has exhausted all avenues. And we mean all avenues. If there is an option for short-term disability, the HRTO has held that that is a relevant consideration in determining whether or not employment has been frustrated under the Code. So, again, you must undertake an objective comprehensive analysis to determine if there's any other positions that the employee may be able to perform within their functional abilities and restrictions.
And that would apply even regardless of how long they've been off work, how long they've been receiving accommodation. Bottom line is if there's something available for them, it should be offered, even if that means that it's being offered at a lower rate of pay. And so we have to remember this is an interactive process. It's organic, as Khiam mentioned. So the employee should always have the opportunity to provide their own input as well.
ELISA SCALI: Thank you. And one comment on the-- when determining whether there's no reasonable likelihood of the employee being able to return or perform essential duties, the key recommendation there is the employer should not be making that decision on their own without some evidence from the employer's medical professional confirming that there is no reasonable likelihood that the employee will be able to return to work.
Don't rely on your LTD insurer's decision that the person is totally disabled. You as an employer must make those inquiries on your own and establish that on your own with your own evidence. So, finally, can we move to the next slide? Khiam, can you just write us, in our closing here, some tips on approving the accommodation process?
KHIAM NONG: There are the four bullets here on this slide that you all can see. But I want you to look at this slide. But I want you to think back again to best practices about taking every accommodation request in good faith. I think if you approach a situation like that, then you can be more supportive, be patient, be understanding, be compassionate.
It's just as difficult for somebody to come to you in the workplace to say, I've got mental health issues, as in Sunil's case. I need help. And so work together. And I think that the process will be smoother for you if you do that. Don't get hung up on late disclosure, on thinking that they're not being honest, and all of those things. I think that if you approach it from a supportive place, then you're going to fare better in the end.
ELISA SCALI: Thanks, Khiam. So that brings us to the end of our session. I'd like to thank Khiam and Alycia. That was a very informative session. I hope everyone found it informative. If you have any questions that you would like to ask about accommodation flowing from this webinar that are not already in the Q&A, which I have already mentioned we will be answering, but please feel free to reach out to the Khiam, Alycia, myself, or any professional that you work with regularly on our ELA team.
Now, your feedback on our webinars is very important to us, so I would ask you to take a few moments to answer our survey. And you could easily access the survey by pointing your camera at the QR code on the screen. That will take you to the survey.
So, again, thank you, everyone, for attending today. We have another webinar coming up this month, actually at the end of the month. We will be sending out more information about that webinar shortly. So stay tuned and have a good day.