How to support employees for success
One of the most sensitive and difficult issues that human resources professionals grapple with on a daily basis is how to accommodate employees with disabilities in the workplace. Interestingly, however, the topic remains a grey area, leaving many questions unanswered. How much is too much medical documentation? What can you ask for? What should you do to meet your duty to accommodate? At what point does the accommodation process itself become discriminatory?
These questions become even more complicated when an employee has a chronic illness. Acute injuries and illnesses last a short time and as a result can be easier to accommodate in the workplace on a temporary basis. Chronic injuries and illnesses, on the other hand, are persistent, recurring and long-lasting, and can sometimes last a lifetime. Many chronic illnesses do not have a cure, but with support, treatment and medication, employees can continue to work while managing their symptoms.
Further, when dealing with some chronic illnesses, such as chronic pain and chronic fatigue syndrome, there may be little to no evidence from independent objective sources, such as X-ray reports or the results of clinical testing. With these kinds of illnesses, the main identification may be done through an employee’s self-reporting to a medical practitioner. There may also be changes in the frequency and severity of symptoms. Given these various complications, accommodating a chronic illness can be a challenging prospect. It is therefore helpful to keep the following key points in mind.
Apply general principles
As with all disabilities, chronic illnesses must be dealt with individually with particular attention to the specific facts of the case. What works for one individual may not work for the next. However, the three key principles of dignity, individualization and inclusion should be kept in mind when accommodating all employees in the workplace.
Under the Ontario Human Rights Code, people with disabilities have the right to have their individual needs accommodated short of undue hardship, to allow them to perform the essential duties of their job. It is important to remember that undue hardship is a high bar to meet, and that “business inconvenience” does not amount to undue hardship. However, if the employee cannot meet the essential duties of their job with accommodation or if accommodation would cause undue hardship, a decision not to employ the individual may not amount to discrimination.
Work collaboratively
The accommodation process is supposed to be a collaborative process – a “two-way street.” Once the employer is aware of an employee’s needs, they must take steps to meet the duty to accommodate. On the flip side, however, an employer is not required to accommodate a disability that it is unaware of. The employer should accept accommodation requests in good faith unless there are reasonable suspicions to indicate otherwise and the employee must cooperate and provide information on relevant restrictions.
Engage and assess
Once the need for accommodation is known, the employer should take the first step to separate essential from non-essential job duties. If the employee is unable to carry out any non-essential job duties, generally the employee should either be accommodated so that he or she can do so, or the duties should reassigned.
In order to accomplish this, HR professionals should consider putting together a standard functional abilities form that can be given to employees so that their medical practitioners can fill it out and return it. While an employee may choose to voluntarily disclose the nature of the illness to the employer, it is generally not appropriate for the employer to inquire as to the employee’s specific diagnosis either on the functional abilities form or in person.
Be reasonable and consistent
Requests for medical documentation should be reasonable. Employers should create or review their policies with respect to requests for medical documentation and apply those policies consistently and reasonably.
In the case of chronic illnesses, it may not be reasonable to repeatedly request medical notes for each and every individual absence.
An interesting case study in relation to accommodating chronic illnesses is found in the Supreme Court of Canada decision, Honda v. Keays, 2008 SCC 39, wherein the plaintiff suffered from chronic fatigue syndrome (CFS). One of the allegations was that Honda discriminated against Keays by requiring him to bring in a doctor’s note to justify each absence when employees with “mainstream illnesses” did not have to do so. In this case, Keays requested to be exempted from the requirement to provide a doctor’s note for each CFS-related absence. Honda refused to consider this request and was skeptical of his condition because of the “cryptic” nature of his doctor’s notes and because his absences were more frequent than initially predicted.
However, the Supreme Court pointed out that since variable self-reporting conditions are characteristic of CFS, it was arguable that Honda acted in a discriminatory manner in subjecting him to the kind of scrutiny he underwent and denying him accommodation for his disability.
The Supreme Court stated that while monitoring employee absences is a valid objective, it can be done in a variety of ways. Requiring a doctor’s note for each absence is only one way of doing it and it may be discriminatory in context. Requesting semi-regular updates from a physician regarding the nature of the symptoms and course of treatment, checking in with the employee directly or requiring doctors’ notes only when the number of absence exceeds the expected number within a given timeframe were all cited as possible reasonable alternatives.
Different monitoring methods would be reasonably appropriate in different contexts. As the Supreme Court reiterated, individualized accommodation is at the heart of the duty to accommodate and is instrumental in creating a discrimination-free workplace.
Think creatively
In developing an accommodation plan, employers and employees should consider return-to-work aids such as ergonomic assessments, assistive devices and help from an employee assistance program. It may even be as simple as reassigning tasks within a group and working with the employee to come up with comparable duties that work within his or her restrictions.
It is advisable to work with the employee, a third-party facilitator, the employee’s medical practitioner and/or any union representatives to come up with innovative solutions while maintaining confidentiality and discretion. This is particularly important in the case of chronic illnesses in which the individual employee may be faced with a unique and variable set of circumstances that may be difficult to navigate without additional input from other resources. Communicating openness to lateral thinking may go a long way in making your employee feel included, respected and individualized.
Keep good records
Keep detailed written records and notes of every phone call, meeting and step taken to accommodate the employee in the workplace. Not only will this help organize and streamline the process, but in case any issues arise, you will have a solid record of efforts taken to accommodate the employee.
Phone a friend
Since workplace accommodation is unique to each individual, there is no easy “one size fits all” blanket answer on how to do it right. As a result, if you are ever in doubt as to which course to take in accommodating an employee, reach out to an employment and human rights lawyer who can act as a sounding board and help you come up with the right solution when weighing all the factors in context.
Krista Kais-Prial is an associate at Israel Foulon LLP.