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‘Duty to inquire’: A key step in accommodating workers’ mental health, well-being

Under human rights law, employers have a duty to accommodate to the point of undue hardship when workplace policies and practices come into conflict with employee needs that are connected to protected characteristics (e.g., disability, creed, family status, etc.), or when those needs otherwise impact the employee’s work performance.

While many employers are aware of the duty to accommodate, they are often unaware of the sub-duty, the “duty to inquire,” which impacts the circumstances that “trigger” an employer’s duty to accommodate.

Triggering the Duty to Accommodate

In most circumstances, the process for the duty to accommodate begins when an employee requests an accommodation.

However, the duty to accommodate may also be triggered in situations where an employee has not made an accommodation request, but the employer is aware, or reasonably ought to be aware, that the employee’s poor job performance (or other issues at work) may be connected to a disability. In that situation, the employer will have a duty to inquire into whether the employee needs accommodation.

The Duty to Inquire and Mental Health

The duty to inquire often arises in connection with mental health disabilities.

While there has been a societal push in recent years towards destigmatizing mental illness, such stigma and negative beliefs continue to be associated with mental illness. As a result, employees may be unwilling to inform their employer when they are experiencing mental health issues. This reluctance may be because the employee is concerned that they will be treated differently after disclosure, they have concerns about privacy, they feel ashamed about experiencing mental health problems, or for a myriad of other reasons.

Further, it can be difficult for people to identify when they are beginning to experience a mental illness, so an employee may not even be initially aware that their struggles are related to mental health issues.

However, if the employer has a reason to believe that the work struggles an employee is facing is due to a disability (such as a mental illness), human rights tribunals have found that employers have an obligation to inquire further into the issue and to assess whether an accommodation is required.

Example Case Law involving the “Duty to Inquire”

Cyncora v Axton Inc., 2022 BCHRT 36: The BC Human Rights Tribunal found that, following an employee telling his manager that he was dealing with mental health issues, the employer reasonably ought to have known that the employee’s absenteeism may have been connected to such mental health issues. Accordingly, the employer had the duty to inquire further into the matter and into whether an accommodation was necessary. Instead, the employer fired the employee for absenteeism, which the Tribunal found to be discriminatory.

Pratt v University of Alberta, 2019 AHRC 24: The Alberta Human Rights Commission found that, although the applicant had not specifically made an accommodation request, she had communicated enough about her circumstances (i.e., the suicide of her brother and how it had impacted her) that the University reasonably ought to have known that the decline in her performance was potentially connected to a mental health issue related to her recent circumstances, and therefore the University had the duty to inquire, which it failed to do.

MacDonald v London Health Sciences Centre, 2019 HRTO 1134: The Human Rights Tribunal of Ontario (the “HRTO”) found that the hospital failed to meet its duty to accommodate by failing to inquire further after it became aware that the applicant was being accommodated at college. However, the hospital was partially successful in its defence, as the HRTO found that, until the hospital became aware of the other accommodations the applicant had been receiving elsewhere, the hospital had no reason to know of the potential accommodation need. As such, it’s accommodation obligations and its duty to inquire was not triggered until that time that it was informed about the school accommodations the applicant was receiving.

Importance for Employers

If an employee is suddenly struggling, has started to behave uncharacteristically, or is otherwise having difficulties at work, the employer needs to carefully assess whether they have reason to believe such conduct may be connected to a disability, as that would trigger the duty to inquire.

This is especially important if the employer is considering dismissing or disciplining the employee, as an employer risks that the Human Rights Tribunal may potentially determine that the duty to inquire was applicable in the given circumstances and the employer breached human rights law by failing to make such inquiries into the potential need for accommodation.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.