By Stephen Dugandzic
In Alberta, the concepts of the duty to accommodate and the duty to inquire are fundamental components of human rights and employment law, ensuring equitable treatment and inclusivity in workplaces and other environments.
Duty to Accommodate
The duty to accommodate requires employers and service providers to make necessary adjustments to policies, practices, or environments to allow individuals from protected groups—such as those defined by race, religion, gender, disability, etc.—to participate fully and equally. This duty is enshrined in both federal and provincial human rights legislation. In Alberta, the Alberta Human Rights Act prohibits discrimination based on various protected grounds and mandates accommodation to the point of undue hardship.
Duty to Inquire
The duty to inquire complements the duty to accommodate by placing an onus on employers or service providers to initiate discussions about accommodation when they are aware, or ought reasonably to be aware, that an individual may have a need for it. This duty arises particularly in situations where an individual’s need for accommodation is not explicitly communicated due to fear of stigma or reprisal. For instance, if an employer notices that an employee’s performance is declining and suspects it may be due to a disability or other protected ground, the employer has a responsibility to inquire sensitively and offer support or accommodation as necessary.
For instance, if an employee begins to show signs of distress, performance issues, or behavioral changes, and these may be linked to a disability or other protected ground, the employer must make reasonable inquiries. This duty ensures that individuals are not disadvantaged due to an inability or reluctance to speak up.
When Does the Duty to Inquire Arise?
The duty to inquire is triggered when:
- Observable Changes in Behavior or Performance: If an employer notices that an employee’s performance has declined or that they are struggling, they may need to inquire if there are underlying issues requiring accommodation.
- Known or Suspected Conditions: If an employer is aware that an employee has a medical condition, mental health issue, or other challenges related to a protected ground, they should inquire about potential accommodation needs.
- Extended Absences or Medical Leaves:Repeated absences or unusual behaviour may suggest an accommodation need. Employers should not assume the reasons but should inquire respectfully and offer support.
How to Fulfill the Duty to Inquire
To meet this obligation, employers and service providers should follow these steps:
- Recognize the Signs: Pay attention to changes in performance, behavior, or attendance that may suggest a need for accommodation.
- Initiate a Private Conversation: Approach the individual privately and express concern in a respectful, non-judgmental way. Ask open-ended questions like: “I’ve noticed some changes in your work—how can we support you?” “Is there anything affecting your ability to perform your duties?”
- Document the Inquiry: Keep clear records of the conversation while maintaining confidentiality. This documentation may be important if legal issues arise.
- Engage in the Accommodation Process: If accommodation is needed, collaborate with the individual to find reasonable solutions. This may involve adjusting work hours, modifying duties, or providing assistive devices.
- Respect Privacy: Be mindful of privacy laws and only request information necessary to provide reasonable accommodation.
The duty to inquire in Alberta is a critical safeguard against discrimination and ensures that individuals who may be unable to advocate for themselves receive fair treatment. By proactively engaging with employees or service users and responding appropriately, employers and service providers can create inclusive environments while fulfilling their legal obligations under the Alberta Human Rights Act.
Application in Alberta
In Alberta, both the duty to accommodate and the duty to inquire are integral to fostering inclusive workplaces and services. Employers and service providers are encouraged to:
- Educate and Train: Provide training to management and staff on recognizing situations that may require accommodation or inquiry.
- Develop Policies: Establish clear policies outlining procedures for requesting accommodations and the process for employers to follow when initiating inquiries.
- Engage in Dialogue: Maintain open and respectful communication with individuals to identify potential needs for accommodation proactively.
- Assess Undue Hardship: Evaluate requests for accommodation carefully, considering factors such as financial implications, health and safety concerns, and the impact on operations, while recognizing that the threshold for undue hardship is high.
By adhering to these duties, employers can aim to promote equality, prevent discrimination, and ensure that all individuals have the opportunity to participate fully in society, while complying with their legal obligations.