Employers' obligation to accommodate are not triggered by performance issues that are not clearly related to an employee's disability, according to a recent human rights decision.
When Heather Stewart was dismissed as a Government of Ontario project manager on the basis of poor performance she filed an application with the Ontario Human Rights Tribunal.
Parts of her broad-reaching claim are continuing to a full hearing with the tribunal, but allegations of discrimination based on her "processing learning disorder" and ADHD have been rejected by the tribunal.
Stewart did not disclose the existence of these disorders to her employer, but argued that the employer ought to have known about them because of her behavior at work. While duty to accommodate can be triggered without an employee specifically informing their employer of a disability or other protected trait, the tribunal found that without clear information connecting the applicant's behaviours to her disabilities, it was reasonable for the employer to conclude that she was struggling with her job, and that her performance problems were skills-based.
"The decision is notable because it reaffirms the principle that evidence of performance problems will not necessarily trigger the duty to accommodate, notably when it is not clear that there is a connection between a Code protected ground and the performance problems," Heenan Blaikie labour and employment group associate Shane Todd said.
Todd added that some experts believe there will be an increase in cases involving adult ADHD because of changes to the diagnostic manual DSM-5, which loosened the criteria for diagnosis.
"Employers are generally required to accept a request for accommodation in good faith," Todd said. "This is usually not problematic because most accommodation requests are bona fide... However, in some cases, there may be legitimate and non-discriminatory reasons to suspect that a request for accommodation was made in bad faith, that the employee is not actually disabled, or that the medical diagnoses is questionable."
What HR can do:
Ask for more information
Employers can and should request information from the employee’s physician to confirm that the employee is suffering from a medical condition or other disability, and to confirm the nature, extent and duration of any functional restrictions.
Diagnosis versus prognosis
Usually, employers are not entitled to and should not request a specific diagnosis. However, especially in the case of claimed actual mental disabilities, a statement of an employee’s symptoms alone will generally not amount to proof of a disability and employers may require "[...] a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically-significant symptoms, from a health professional in a report or other source of evidence that has specificity and substance"
Clarify and confirm
If the information provided is vague or inaccurate, ask for further clarification. "Repeated follow up is appropriate until the employer has sufficient information about the nature, extent and duration of any functional restrictions or limitations to discharge the duty to accommodate, or until it becomes clear that the employee and his or her physician is not acting reasonably in the accommodation process so as to bring that process to an end," Todd said.
Worst case scenario
In exceptional cases employer’s suspicions may be confirmed that the request for accommodation was not made in good faith, or in relation to a sound medical diagnosis. In most cases, employers cannot require an employee to submit to an independent medical examination, but when there are serious, well-founded, and well-documented concerns about a diagnosis or a request for accommodation, the refusal to submit to a reasonable request for a second opinion may lead to the conclusion that the employee has not fulfilled his or her obligation to participate in the accommodation process.