What is the Duty to Inquire?
As a starting point, it is well-established that employees have obligations to inform their employer of their need for accommodation and to disclose sufficient information for the employer to fulfill its duty to accommodate. It is not always the case, however, that employees are forthcoming with accommodation requests or related information.
When an employee presents with behaviour that indicates the existence of a disability or other need for accommodation, an employer has the obligation to ask the employee about it, and to obtain supporting medical information as is necessary, before taking disciplinary or other adverse action against the employee. This duty to inquire is a component of the law of accommodation that ensures that an employer is not taking advantage of circumstances where it is aware of or should be aware of a possible need for accommodation.
This article discusses two recent decisions from the Alberta Human Rights Commission which provide helpful guidance to Saskatchewan employers regarding both when the duty to inquire arises and what it requires of an employer.
The Duty can arise when an employee indicates they may have a disability or their conduct gives cause for suspicion of a disability
In Calkins v Broadview Homes (Alberta) Ltd., 2023 AHRC 45, the employer, a home builder, terminated the employment of the complainant employee without cause after approximately two and a half years. The employee, a former sales manager with the employer, filed a human rights complaint alleging that he was discriminated against on the basis of disability.
Before the Human Rights Tribunal of Alberta, the employer took the position that it was not aware of the employee's need for accommodation or his symptoms related to Chronic Traumatic Encephalopathy ("CTE"), which is a cognitive disability. The key issue before the Tribunal was whether or not the employer ought to have inquired whether the employee's performance issues were related to a mental disability.
The evidence before the Tribunal established that the employer had been receiving performance complaints from customers regarding the employee's conduct for approximately a year. When these complaints were discussed with the employee, he tended to blame the customers or the employer's work product. As the board found, many of the complaints had similarities in that the employee's conduct indicated memory issues and hostile behaviour.
More importantly, it was admitted during cross-examination of the employee's supervisor that the supervisor was told by the employee about his suspected CTE disability on two instances and that the supervisor told the employee to go to the doctor and report back to him. These events occurred in the month preceding the employee's termination and established that employer was actually aware of a possible need for accommodation.
The Tribunal explained that the duty to inquire arises when an employer knew or reasonably ought to have known of a link between an employee's performance issue and a disability. In this case, the link was between the employee receiving complaints and his possible cognitive disability. The Tribunal explained the duty to inquire as follows:
[59] In certain instances, an employer's failure to make inquiries as to an employee's health, before taking steps that adversely affect an employee's employment situation, where an employer has reason to suspect that a medical condition may be impacting the employee's ability to work, has been found to be discriminatory:
a) a duty to inquire arises where an employer knew or reasonably ought to have known of a link between an employee's performance and a disability;
b) the analysis, which is highly dependent on the particular facts of each case, requires a determination of what was known by an employer about an employee's disability;
c) the duty to inquire is an exception to an employee's obligation to disclose relevant disability-related information to their employer. This exception is narrow in nature.
In this case, the employer knew about the employee's CTE-related concerns but it did not consider whether the employee's cognitive issue could be the cause of the complaints or the change in the employee's work performance.
The Tribunal concluded that the employer was obligated to inquire about (and follow up) whether there were medical concerns that would explain the change in the employee's work performance before terminating him. In upholding the employee's complaint, the Tribunal awarded the employee $20,000 in injury to dignity damages.
The Duty does not arise when there is no evidence of a disability and when there is no basis for an employer to be suspicious that an applicant has a disability
In Greidanus v Inter Pipeline Limited, 2023 AHRC 31, the employer made the complainant applicant an offer of employment that was conditional on the complainant passing a pre-employment drug screening. The complainant failed the drug screening due to having THC in his system and the employer rescinded the employment offer.
Before the Tribunal, the applicant evidenced that he used marijuana for medical purposes relating to old injuries. He argued that he was discriminated against by the employer on the basis of disability. The employer argued that, at the time it rescinded the offer of employment, it had no knowledge that the applicant had a disability and couldn't have discriminated against him. This case turned on whether or not the duty to inquire arose and, if so, whether or not the employer discharged its obligations.
In the facts of the case, the applicant had mentioned to the individual with whom he had been communicating about the position that he had been "banged up" in the military, but made no mention of injuries or conditions requiring accommodation.
The Board, in this instance, explained that the duty to inquire arises when an employer is aware or reasonably ought to be aware of an applicant's protected ground, such as a disability, and there may be a connection between the protected ground and the applicant's ability to comply with a specific workplace rule or when the conduct or behaviour of the applicant is reasonably sufficient to raise an employer's suspicion that the applicant has a protected characteristic, such as a disability. In such cases, the employer's inquiry must occur prior to taking any disciplinary or other action that may cause an adverse impact on the applicant, such as rescinding an employment offer.
On the facts of this case, the Tribunal concluded that the employer had no knowledge or basis to have knowledge of the applicant's disability, and therefore it did not infringe the applicant's human rights by rescinding the offer of employment. The applicant's complaint was dismissed.
Conclusion
The important takeaway from these two decisions is that a duty to inquire is likely triggered if there is knowledge or reasonable suspicion that an employee's poor performance or failure to meet expectations is related to a disability or other need for accommodation.
An employer must discharge this duty by inquiring about the cause of the employee's change in performance prior to taking any disciplinary or adverse action. The same principles apply to job applicants. As the Tribunal noted in each of these cases, determining the existence of a duty to inquire is a fact-specific exercise.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.