Before you fire, consider the duty to inquire about disabilities

Employers are generally hesitant to ask their employees about their mental or physical health, and understandably so.

An employee’s medical information is highly sensitive and personal. It is generally considered to be outside the purview of their employer. However, in some cases, the failure to inquire about an employee’s well-being can have serious consequences.

Consider an employee who is creating problems in the office. She has rubbed people the wrong way for a while and she is not performing at the same level as her colleagues. She is often late, and when she is around, she is irritable and prone to mood swings. When you address these issues with her during a performance evaluation, she refuses to take any responsibility. You conclude that she is unwilling or unable to change these behaviours and decide to terminate her employment for cause. 

To your surprise, she files a human rights complaint against your company. She claims that she suffers from a mental disability that influenced her performance, and therefore her dismissal amounted to discrimination based on that disability. Could you be held liable for her lost wages even though she never told you she had a mental disability? The answer may surprise you.

This was the situation faced by the employer in Mackenzie vs. Jace Holdings Ltd. (carrying on business as Thrifty Foods), [2012] B.C.H.R.T.D. No. 376.

The British Columbia Human Rights Tribunal held that Thrifty Foods had a duty to inquire into whether the behaviour exhibited by the complainant was due to her mental disability and whether she required any accommodation. Moreover, Thrifty Foods did not fulfil that duty. The tribunal noted there was ample evidence that the complainant’s workplace performance was impacted by a disability: she had been on stress leave for some time, she cried in her managers’ office and at least three employees knew she had mental health issues.

So, when exactly is the duty to inquire triggered?

An employer has a duty to inquire if it has a reasonable basis to conclude that misconduct or other undesirable behaviour could be the result of a physical or mental disability.

Physical disabilities are generally easier to identify. Consider whether you have a duty to inquire for underperforming employees who complain about chronic pain, schedule frequent medical appointments, or have been on medical leave in the past.

Mental disabilities can be more elusive. Keep an eye out for:

• formerly good or average employees who suddenly start underperforming;

• employees who exhibit erratic or bizarre behaviour;

• employees who complain that they feel anxious or unhappy;

• employees who appear to react in a disproportionately intense way to workplace conflict and/or negative feedback; and

• employees with unexplained lateness or absences.

Not all odd behaviour will give rise to a duty to inquire. If an employee repeatedly reassures you that they are fine, you likely do not have a duty to inquire further. 

It is also important to understand what constitutes grounds for discrimination under British Columbia’s Human Rights Code. Mental health, addictions, temporary physical limitations such as a broken arm, chronic health concerns and episodic health issues such as multiple sclerosis or HIV are all considered to be disabilities regardless of whether they temporarily or permanently affect an individual.

Asking employees about their health and well-being can be uncomfortable for both parties. It is important to approach the subject as sensitively as possible. If you think you may have a duty to inquire, speak to the employee privately. Describe the behaviour you have observed and ask whether there is a mental or physical health issue that is affecting his or her ability to perform on the job. Reassure the employee that it is your responsibility to accommodate a disability to the point of undue hardship.

By identifying and accommodating employee health issues early, employers can reduce workplace inefficiencies, prevent interpersonal conflicts and foster a sense of trust in the work environment.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern. The article is for general information purposes only and does not constitute legal advice.

Sarah Blanco is an associate at Roper Greyell, practising in employment and labour law with a focus on injunctions, wrongful dismissal claims and labour grievances in the workplace.