When it comes to legal obligations of employers in Canada, it’s said that every workplace must accommodate the special needs of their employees. To achieve this, the first thing that employers need to look at is the duty to inquire. It’s not all about snooping around but instead asking the right questions to make sure everything is above board.
In this article, we’ll discuss how these duties correlate with each other, and how they should be done by the employer. This article can be used by employers and HR professionals who want to know more about the laws surrounding these duties. It can also be used by lawyers as an educational tool for their clients who have their own businesses and workplaces.
What is the employer’s duty to inquire in Canadian laws?
An employer’s duty to inquire pushes them to check and ask their employees whenever they experience undue hardship in the workplace. Simply put, it’s about asking the employee if they need help, especially when there are clear "red flags."
It compels employers to be sensitive about what is happening to an employee, be curious about their present condition, and eventually offer some solutions for their problems. The goal of this duty is for the employer to provide accommodation for the employees, whenever justified and possible.
This duty is usually applied in the sense that employers should know if their employees have a disability that needs to be accommodated. However, it can also be applied generally to other work-related concerns. For instance, when an employee who is always prompt suddenly becomes frequently absent from work, the employer must check on them under their duty to inquire.
It’s also related to ensuring that employees are mentally and physically healthy in the workplace, as required by the Canadian labour laws. Some obvious changes in the quality of work and attitude of an employee should lead the employer to ask if everything’s okay. This is crucial, especially if the workplace is the issue, as this hotseats the employer take action.
Know more about one’s duty to inquire with this video:
Consult a lawyer if you want to learn more about this duty. You can use our directory of the best employment lawyers in Canada as ranked by Lexpert.
Canadian labour laws and the duty to inquire
This duty is elaborated by the Canadian labour and employment laws, which may vary depending on to the province and the type of workplace. Mostly, the duty to inquire can be found in our human rights statutes and anti-discrimination laws, both federally and provincially:
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Canadian Human Rights Act (CHRA): applies to federally regulated institution and activities, regardless of province where they’re found
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provincial human rights laws: applies to other institutions, such as private businesses, in that particular province (e.g., Ontario's Human Rights Code)
These laws also establish the administrative bodies that will handle complaints of discrimination and other labour violations. For example, the CHRA also established the Canadian Human Rights Commission (CHRC), which investigates any complaint under the CHRA. It also established the Canadian Human Rights Tribunal (CHRT) that adjudicates these complaints. Similar set-ups are found in the provinces through their own anti-discrimination and human rights laws.
An employer’s duty to accommodate and inquire
An employer’s duty to accommodate can be understood by relating it to their other duties. While these may differ in names in each province, they’re basically the same as to their end goal: to accommodate employees and clients who have special needs.
As such, the duty of an employer to inquire is an offshoot of their duty to accommodate; this is where the duty to inquire flows from. This is why some jurisdictions call the duty to inquire as the duty to inquire about accommodation needs.
Under the duty to accommodate, every person must have an equal opportunity, both the employees of an office or business and the clients who seek their services. The duty to accommodate aims to:
- eliminate any discrimination that is experienced or to be experienced by persons with disabilities
- ensuring the full integration and participation in the workplace of persons with disabilities
- accommodate the employee, with the limitation that it would not cause the employer some undue hardship
For these purposes, employers may alter their rules, policies, or practices to accommodate the needs of their employees. Case law provides that special attention must be put in the two components of duty to accommodate:
- procedural: the process of accommodating the employee, which may start with exercising the employer’s duty to inquire
- substantive: the accommodation that was provided to the employee, i.e., what it is and how it applies
This means that an employer’s mere following of either of these components is not sufficient. It must go in tandem, and employers must see to it that the process is legally compliant from start to finish.
Watch this video to know more about this duty to accommodate, specifically to accommodate employees with disabilities:
Our directory of the best Canadian law firms for employment law is another tool you can use when searching for lawyers to help you learn about this duty to accommodate.
How should the duty to inquire be exercised?
The duty to accommodate applies automatically when the needs of an employee are readily apparent or when the employer ought to have known these needs. However, there are instances where the employer should be proactive in inquiring about these needs when an employee either:
- cannot identify that they themselves need special accommodations
- show signs that they’re clearly unwell, either physically or mentally
Steps in exercising the duty to inquire
Here’s a summary of the steps that an employer, including their HR department and managers, must take when applying their duty to inquire about an employee’s need for accommodation:
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inquiring: when an employee shows signs of mental or physical difficulty, or it shows that they have needs related to a disability, then an employer must try to communicate with the concerned employee
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offering assistance: part of the inquiry is to ask the employee how they are, what problems they are experiencing both in their home and the workplace, and what accommodations can be provided
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doing the accommodation: after the inquiry, the employer proceeds with planning and implementing the accommodation, i.e., the procedural and substantive components of the duty to accommodate
As these are just general steps, it’s important to consult with a labour and employment lawyer to see how this process works in your specific workplace. The rule of thumb would be for employers to be respectful, supportive, and not quick to judge during this whole process.
How to do the inquiring part
Managers or employers may not be comfortable with starting a conversation with the employee; however, the law attaches such responsibility to them. This is true especially when there are obvious reasons to do one’s duty to inquire. To prepare for these situations, employers may want to provide training from HR professionals, labour lawyers, or human rights commissions on how to do an inquiry.
In any case, here are some suggestions on how to ask an employee, in line with one’s duty to inquire:
- if the employee has an existing illness that needs accommodation
- if the employee wants to have an accommodation in place
- if there are workplace barriers that needs to be addressed
Restrictions on exercising the duty to inquire
While the duty to inquire forces employers to be sensitive of their employees’ state, it does not give them the authority to be nosy to the point of becoming unbearable. To guide employers on how to exercise this duty to inquire, here are some restrictions to consider:
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never make unreasonable assumptions: an inquiry should not make irrational and irrelevant assumptions based on what the employee has shared; for example, demoting an employee because of their illness that was discovered because of the inquiry, or after they returned from a disability-related leave, after assuming that they cannot do their job anymore
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do not diagnose an employee: to make the appropriate accommodation, it’s more prudent to let the employee seek medical services when they imply that they’re experiencing some illness, as opposed to employers second guessing their sickness or doing the diagnosis themselves; employers should also avoid substituting their own opinion for a medical diagnosis or ask for more confidential medical information unless necessary
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avoid intruding on an employee’s private life: over the course of the inquiry, some employees might be shy on sharing some private information, especially when it’s related to their personal difficulties at home or other relationships; it follows that the employers cannot intrude in an employee’s private life when making the appropriate accommodations
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discipline an employee after inquiring: it would be illegal to dismiss an employee based on the information they shared with the employer during the inquiry, or letting them go some time after the accommodation has been implemented; this includes unreasonably suspending the employee, or putting them at a position, rank, or salary that is below what they’re entitled to before the inquiry happened
These examples are inspired by what common law has adjudicated to be a human rights violation and discrimination against the employee. These are also based on what the human rights commissions have cautioned employers from doing.
Exceptions to the restrictions on the duty to inquire and accommodate
However, it’s not all the time that an employer’s actions are held to be unreasonable or are violations of Canadian labour and employment laws. Of course, an employee’s behaviour that is unjustified by any disability, illness, or special needs may be sanctioned by the employer.
Another is that an employer is allowed to ask for further medical assessment from the employee to ensure that they’re still fit to work. However, there should be legitimate concerns or reasonable causes for such additional requirement. Upon compliance by the employee, the employer must in turn rest its case.
When an employee has been granted medical or disability-related leave, employers may reasonably expect that they will be regularly updated when the employee returns. This is also to prevent causing undue hardship for the employer, especially if the leave was granted as part of the accommodation to the employee.
Lastly, an employer’s duty to inquire and accommodate ends when the employee refuses to participate in the accommodation process but still cannot fulfil their professional duties. When the employee does not do their part in the whole process, employers may validly resort to sanctions and dismissals.
What are consequences for not doing one’s duty to inquire?
Failure to do one’s duty to inquire will result in legal consequences for the employer. Absent the process of inquiry and accommodating an employee for legitimate reasons, any subsequent acts of the employer will be taken against them. An example would be the dismissal of the employee without following the duty to inquire and accommodate, which is illegal.
Damages may also be sought against the employer for not following the processes instituted by law. This is in addition to specific civil, criminal, and administrative liabilities that may be imposed on the employer, under the Canadian labour laws.
Duty to inquire and asking the right questions
The duty to inquire is not just a legal formality, but it’s an important obligation by law to ensure that employees are treated fairly and accommodated when needed. By actively asking the right questions and being sensitive to the employees’ needs, employers can foster a supportive, healthier, and compliant workplace. Should there be gaps that need to be filled in, then consulting with a labour and employment lawyer would be the best thing to do.
Looking for employment lawyers near your area? You can also use our directory of the Largest Law Firms in Canada, which can be filtered according to province.