“One of the obvious big issues for employers especially is what can they ask employees to provide when they’re seeking accommodation?” says Renu Mandhane, chief commissioner of the Ontario Human Rights Commission. “The new policy statement is meant to strike a balance between privacy and dignity [of the person seeking accommodation] and the need for the employer to understand functional limitations, and what they must accommodate.
“I think that a lot of respondents — service providers and employers — they don’t know what they’re allowed to ask for,” says Mandhane. “Our policy [since 2016] says there’s a duty to inquire. So, if an employer believes there may be a disability, the employer may ask about the disability-related issue.”
A duty to inquire about accommodation needs was created under the OHRC’s revised policy of 2016. “Accommodation providers must attempt to help a person who is clearly unwell or perceived to have a disability by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation,” according to the OHRC’s Policy on ableism and discrimination based on disability.
The type of medical information that accommodation seekers may generally be expected to provide to support an accommodation request includes:
• that the person has a disability
• the limitations or needs associated with the disability
• whether the person can perform the essential duties or requirements of the job, of being a tenant, or of being a service user, with or without accommodation
• the type of accommodation(s) that may be needed to allow the person to fulfil the essential duties or requirements of the job, of being a tenant, or of being a service user, etc.
• in employment, regular updates about when the person expects to come back to work, if they are on leave.
Although an employer is entitled to receive this type of medical documentation from a doctor, it is not entitled to “ask for more confidential medical information than necessary because it doubts the person’s disclosure of their disability,” the policy states.
“Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy while still giving the organization enough information to make an informed decision about the accommodation. . . .
“Generally, the accommodation provider does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation being sought, or the person’s needs are complex, challenging or unclear and more information is needed. . . . ”
However, “If the person does not agree to provide additional medical information, and the accommodation provider can show that this information is needed, it may be the case that the person seeking accommodation could be found to not have taken part in the accommodation process and the accommodation provider would likely be relieved of further responsibility.”
The OHRC’s Policy on ableism and discrimination based on disability policy on ableism and discrimination based on disability, released in September 2016, updated the policy and guidelines on disability and the duty to accommodate of 2001; at 99 pages, it is two and a half times as long as the version released 15 years earlier. While the 2001 policy concerned itself with disability accommodations in employment, the updated policy also looks at case law relating to disability discrimination and accommodation in housing and schools, including universities, says Mandhane.
“We’re trying to acknowledge that in the last 15 years . . . we have seen peoples’ request for accommodation extend beyond the employment sector,” she says. “We want to make sure people are being accommodated consistent with the [Ontario] Human Rights Code. Obviously, what we consider a disability has changed a lot in the last 15 years.”
Today, there is increased recognition of mental health problems and chemical sensitivities including those that can prompt acute allergic reactions such as anaphylaxis, Mandhane notes. “These have been recognized as disabilities attracting attention under the Code. . . . We also bring an intersectional lens to unique disabilities” faced by elderly, trans and racialized people, she adds.