Canadian Employment Law Today

looking at alternate jobs. While the duty to accommodate will generally be triggered by a request, the accommodation obligation can also be triggered by the duty to inquire into an employee's accommodation needs. e new OHRC policy states that "where an organization is aware, or reasonably ought to be aware, that there may be a relationship between a disability and someone's job per - formance…the organization has a 'duty to inquire' into that possible relationship before making a decision that would affect the per- son adversely." Sufficient awareness, accord- ing to the OHRC policy, would include ob- serving inappropriate behavior by a person. With this in mind, as well as the recom- mendations in the new OHRC policy, here are a few strategies to help employers active- ly accommodate: Meaningfully consider possible accom- modation options. Employers should be creative and flexible when it comes to con- sidering accommodation requests and not simply "go through the motions" of accom- modating. While there is no requirement to create a new position, assign meaningless tasks to the disabled employee or provide accommodation that would result in undue hardship, there is the obligation to consider modifying the employee's current position or consider an alternate position that is avail - able within the organization. Clearly understand the accommodation need. Upon receiving a request for accom- modation or having the duty to inquire trig- gered, employers should take active steps to understand the employee's needs by seeking adequate medical information. e OHRC policy confirms that accommodation seekers may be expected to provide information such as the existence of a disability, the limitations or needs associated with the disability, con - firmation that the person can perform their essential duties of the position and the type of accommodation that may be required. Train your managers. Managers who are "on the ground" observing the day-to-day is - sues with employees must understand their legislative requirements and accountabili- ties, particularly when certain matters re- quire escalation. Managers should be trained on their obligations under human rights legislation, including any behavior by an em- ployee that the tribunal considers to trigger the duty to inquire. Develop a clear accommodation policy. A policy outlining the process for accommo - dation should be clearly communicated and documented. Specifically, the policy should contain a commitment to accommodation, outline the duties and responsibilities of all parties involved in accommodation, and establish a procedure for maintaining the confidentiality of the information shared. As a note of caution, some employers may be tempted to create a "one-size fits-all" tem - plate for accommodation as a response to any requests for accommodation or whenev- er the duty to inquire is triggered. is is not acceptable as confirmed by the OHRC policy given that accommodation is an individual- ized process where employers are required to evaluate each request on a case-by-case basis. Accordingly, employers are best ad- vised to design an accommodation process to ensure the investigation and implementa- tion of accommodation options. For more information see: • Hamilton-Wentworth District School Board v. Fair, 2016 CarswellOnt 8904 (Ont. C.A.). ABOUT THE AUTHOR PAMELA CHAN EBEJER Pamela Chan Ebejer is a lawyer with Williams HR Law, a human resources law firm in Markham, Ont., serving employers exclusively. She can be reached at (905) 205-0496 ext 228 or pchan@williamshrlaw.com. Canadian HR Reporter, a Thomson Reuters business 2016 November 9, 2016 | Canadian Employment Law Today CREDIT: STOCK-ASSO/SHUTTERSTOCK

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