Canadian HR Reporter

Canadian HR RepoRteR September 22, 2014 INsIGHt 15 Accommodation never one-size-fits-all OHRC has thorough policy on issues related to mental health disabilities e mployees request accom- modation for various forms of disability that run the gamut — from sprained wrists to severe depression. employers, knowing they are required to accommodate, are often skeptical. sometimes this is for good reason, as the sad re- ality is there are some individu- als who know how to abuse the system through bogus requests. e result is that some legiti- mate requests are questioned. The recent tragedy of Robin Williams' suicide has cast the spotlight once again on depres- sion. In a blog I wrote for hrreport- er.com, I discussed the process for requesting accommodation and responding to such requests: "When such a request is made, the employer is entitled to request sufficient medical documentation in order to allow them to under- stand the specific limitations upon the employee's ability to carry out their duties that require accommodation." A reader posted the following comment: "is article implies that when an employee approaches an em- ployer with a request for accom- modation on the basis of mental disability, the employer should automatically seek medical infor- mation. Section 13.7 of the On- tario Human Rights Commission (OHRC)'s Policy on Preventing Discrimination based on Mental Health Disabilities gives good ex- amples of a preferable approach: Focus on the person's own assess- ment of their needs and strengths. Only if the person's needs are complex, or the person is not tak- ing part in the process, should additional information from a doctor be sought. Otherwise, em- ployees with mental health issues are stigmatized as liars seeking unnecessary special privileges." is was a legitimate point and was a helpful reminder of the commission's recently released policy, which is quite thorough in discussing issues of particu- lar relevance to mental health disabilities. Among other things, the policy addresses the accommodation process and the employer's right to request medical documenta- tion. Rather than attempt to in- terpret or paraphrase the policy, I have reproduced relevant por- tions of it below: e person with a disability is required to: • answer questions or provide information about relevant re- strictions or limitations, includ- ing information from health- care professionals, where ap- propriate and as needed • co-operate with any experts whose assistance is required to manage the accommodation process or when information is needed that is unavailable to the person with a disability. e accommodation provider is required to: • accept the person's request for accommodation in good faith, unless there are legitimate rea- sons for acting otherwise • get expert opinion or advice where needed (but not as a rou- tine matter) • limit requests for information to those reasonably related to the nature of the limitation or restriction, to be able to respond to the accommodation request. e type of information accom- modation seekers may be expect- ed to provide includes: • that the person has a disability or a medical condition • the limitations or needs associ- ated with the disability • whether the person can per- form the essential duties or re- quirements of the job, of being a tenant or of being a service user, with or without accommodation (this is more likely to be relevant in employment) • the type of accommodations that may be needed to allow the per- son to fulfill the essential duties or requirements of the job, of be- ing a tenant, or of being a service user, etcetera. Where someone's needs are unclear, she may be asked to attend an independent medical examination (IME). However, there must be an objective basis for concluding that the initial medical evidence provided is inaccurate or inadequate. e IME should not be used to second-guess a person's request for accommodation. Re- quests for medical examinations must be warranted and take into account people's particular dis- ability-related needs. No one can be made to attend an independent medical exami- nation, but failure to respond to reasonable requests may delay the accommodation until such information is provided and may, ultimately, frustrate the accom- modation process An accommodation provider should be able to explain why it is requesting particular informa- tion about a person's disability and how this relates to accommodat- ing the person. If the person does not agree to provide additional medical infor- mation, and the accommodation provider can show that this in- formation is needed, the person seeking accommodation could be found to not have taken part in the accommodation process and the accommodation provider would likely be relieved of further responsibility. It is fair to say employers re- ceiving a request for accommo- dation should not automatically demand a fixed set of informa- tion and documentation. ey must assess whether additional information is genuinely neces- sary in order to understand and assess the request for accommo- dation, and limit their request to that information which is truly necessary. If they can justify such requests, and the individual refuses, then the obligation to accommodate may be at an end. However, in- sisting upon the provision of unnecessary information before complying with a request for ac- commodation can result in a find- ing of discrimination. For employers, remember that the accommodation process is not one-size-fits-all. Every request must be assessed based upon its specific merits and facts, and re- quests for information should be justifiable. For employees, do not assume privacy legislation allows you to simply ask for accommodation and then refuse to provide any information whatsoever (as some individuals have claimed). Rather, be prepared to disclose informa- tion that is reasonably necessary to allow your employer to assess the need for accommodation and the potential forms thereof. At the same time, do not blind- ly comply with every request for information, as some employ- ers continue to demand an indi- vidual's "complete medical file" in response to all requests for accommodation. Stuart Rudner is a founding partner of Rudner MacDonald in Toronto. Fol- low him on Twitter @CanadianHR- Law or he can be reached at srudner@ rudnermacdonald.com. stuart Rudner Guest Commentary ongoing performance management Too many employers rely too heavily on annual performance reviews Question: How do we ensure performance management is viewed as an ongoing process as opposed to an annual event? Answer: Far too many manag- ers and employees (and even some organizations) view performance management as a necessary evil that is done as part of the annual performance appraisal process. Because managers and employees alike dread performance reviews, there's a tendency to avoid having necessary performance discus- sions throughout the year, which helps neither the organization nor its employees. It is a bit of a cliché to say noth- ing in a performance review should ever come as a shock to an employee. However, it's a great starting point in communicating to managers the importance of providing ongoing performance feedback throughout the year. is message is important for several reasons, a key one being that employees need meaningful feedback. It isn't fair to make them wait until the annual performance review to find out how they're do- ing. By that time, it's really too late to make any changes for the cur- rent year. One of the most important jobs of a manager is to set expectations and provide organizational con- text for managing performance. Employees need to know what effective performance actually looks like, and that message needs to be provided from the outset, preferably by providing objective standards of performance. Performance management is also important from the organiza- tion's perspective to ensure every- one works towards organizational goals and objectives, and ensure employees and the employer aren't working at cross-purposes. Goals need to be aligned with the organization's strategy, vision, mission and values. at is one of the reasons why most organizations use some type of "management by ob- jectives" (MBO) methodology when it comes to cascading goals and objectives throughout the organization. Using this approach, employees typically meet with their manag- ers at the beginning of the year to draft goals and accountabilities for the upcoming year. Employees should have a hand in setting their own goals and ob- jectives to help ensure buy-in and engagement. Regular meetings important Managers and employees should have regular one-on-one meet- ings and coaching sessions and review progress towards goals, as well as challenges and potential roadblocks that relate to those goals. The frequency of such meetings varies depending on the role and the individuals in ques- tion, but such conversations typi- cally happen biweekly or at least once per month. Such meetings allow employees to bring up any issues or problems related to their work, the organi- zation or co-workers. ey also make it much easier for manag- ers to have difficult performance- related conversations with em- ployees because the atmosphere can be less emotionally charged than in a formal performance re- view. ere's also the feeling there is less at stake during an informal coaching session than a full-blown performance appraisal. Nevertheless, it is particularly important to train managers on how to give effective performance feedback (for example, by not per- sonalizing the feedback, includ- ing elements of positive feedback along with constructive feedback and ensuring criticism is given in private). Many organizations even have mandatory mid-year performance "temperature checks," so employ- ees have a chance to hear how they are doing partway through the year. is can be somewhat formal, with the manager and employee having to provide com- ments and confirm electronically the discussion took place. Similarly, employees should be having regular career develop- ment discussions with their man- agers (or occasionally with their managers-once-removed). While career development is a separate issue from performance, the two are most certainly related. After all, part of any career plan- ning conversation is a discussion about what knowledge, skills and competencies are necessary to get to the next level or the next role. Even with the annual perfor- mance appraisal meeting itself, it is necessary to give employees an opportunity to provide their own input, feedback and some type of self-evaluation because manag- ers won't necessarily remember everything an employee has ac- complished during the year. It also means managers and employees will need to think about performance throughout the year and prepare for the re- view beforehand. The performance appraisal isn't just a form to be filled out by a manager and handed to the em- ployee for signoff. A great deal of thinking, planning and discussion need to go into the performance management cycle throughout the year — not just at the time of the review. Brian Kreissl is the product develop- ment manager for Carswell's human resources, OH&S, payroll and records retention products and solutions in Toronto. For more information, visit www.carswell.com. Brian Kreissl Toughest hr Question

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