When accommodating mental health and/or marijuana use an employer has the duty to inquire… what does that mean exactly? It’s not just about your duty to accommodate, but from a legal standpoint employers need to inquire. Arising out the Human Rights Act (AHRA) is an employers duty to accommodate which means removing barriers to participation based on a person’s characteristics and circumstance, providing equal access to work and services customarily available to the public, and a legal response to marginalizing individuals with certain characteristics. The AHRA prohibits employers from refusing to employ, refusing to continue to employ or discriminate against any person with regard to employment on the basis of the prohibitive grounds. Typically the courts don’t view intention to discriminate as a means of determining guilt.
Christin Elawny a Lawyer at Field Law provided us with a legal overview to the Duty to Accommodation and the Duty to Inquire. Employers must be willing to accept and endure some hardship and expense in order to fulfill the duty to accommodate. In the context of undue hardship an employer can rationalize this through several factors, safety being first and foremost. There is a shared duty in all this and expectations that an employee will cooperate and participate in the accommodation process. For example, the person seeking the accommodation must raise the need and give adequate notice and provide relevant and adequate documentation that supports the need. This shared responsibility implies that the employer and employee will work together to find options for accommodation and be creative.
But what if the employee is presenting behaviours that are out of sync with the person’s normal behaviours or personality. And, that is assuming a relationship has been established with that person such that you know know what’s normal. Perhaps this person is exhibiting signs of a mental illness or discloses the use of marijuana to a co-worker. What do you do? What can you do? Surprisingly, and something I was not familiar with is the “duty to inquire”. When the employer becomes aware of an issue or observes changes they should inquire. Ignorance is not bliss. If left unmanaged, the issue could worsen and/or become a safety concern in the workplace.
The duty means being proactive, having those conversations, and leaning in. The new OHS Act implies this duty to inquire as well. An employer must ensure, as far as it is reasonably practicable the health and safety AND welfare of its employees and those who may be impacted at the worksite. You can’t turn a blind eye… if you see or know, you need to act accordingly. Preparing your leaders to act is critical. It is about creating a respectful and open culture. One that is inclusive and transparent. Be forward thinking by establishing policy, training supervisors, and communicating with your employees and making them aware of these policies and their shared responsibilities. Avoidance of an issue or letting things percolate to create a toxic or unsafe work environment is counter to the responsibilities outlined in the changes to the Alberta OHS Act.