By Julie Holden, Principal – Holden and Associates Consulting Inc.
Most employers understand the need to accommodate an employee when they’re ill, but what does this mean and when does it start?
It actually starts during the recruitment phase. If a prospective employee in for a job interview asks to switch the date or time due to childcare issues, is this an accommodation? Yes, according to the Ontario Human Rights Code because not agreeing to accommodate the prospective employee may be deemed discriminatory on the basis of family status.
Similarly, if a person applying for the role wants an enhanced computer screen to take a test, as part of the hiring process, this is also an accommodation that must be made.
Under the Code “Organizations have a duty to accommodate to the point of undue hardship.” What does this mean? There is no absolute test, and the bar is set much higher for large corporations than for a small family-run business. However, in all cases efforts must be made and a process followed in good faith. The good thing is that in many cases, accommodation is not costly and may simply involve making policies, rules and requirements more flexible.
The Code prescribes only three considerations when assessing whether or not an accommodation would cause undue hardship – cost, outside source of funding if any, and health and safety requirements if any.
When an employee seeks accommodation for a disability, either physical or mental, the duty to accommodate is complicated by the employer’s need for and right to information, and the employee’s privacy rights. This can be a difficult and delicate balancing act, but it’s a balance the employer must achieve to legally accommodate the person.
I often recommend to my clients not to accept doctors’ notes, except perhaps for the first few days of absence. This is because almost anyone can get one, they provide little information, and sometimes it’s hard to read them!
The best way to obtain the information required, while respecting the employee’s privacy, is to have their doctor complete a Functional Abilities Form (FAF). The employee can take this and their Job Description to their physician. The FAF sets out the daily job requirements. For example, what is the requirement to sit, stand, focus on a computer screen, or provide customer service functions? With this information, the physician indicates what the employee can and cannot do in relation to the job. There is no request for a diagnosis or treatment plan, which is confidential.
This is information employers can work with since it provides valuable, detailed information unlike a typical doctor’s note. From there an accommodation plan may be developed.
Keep in mind the value of collaborating early with your employee regarding a return-to-work plan. It doesn’t mean the employee is expected to return to work before they are ready, but that the planning process can begin early with firm dates in mind.
The goal is a successful, sustained return-to-work which involves input from several key stakeholders. Employers would be wise to have an Accommodation Policy to help streamline the process and ensure they’re compliant with relevant legislation.
Most employees want to return to their pre-illness or pre-injury lifestyle as soon as possible, which includes work. They may need a little help along the way, and it’s a legal requirement for employers to provide it.
Julie Holden works with employers to help navigate the world of absence & disability management strategies and workplace mental health. She is a Canadian Mental Health Association Certified Psychological Health and Safety Advisor.
Contact: julie@holdenassociatesconsulting.com; 647-455-2393