Employees may be suffering from hidden disabilities that affect performance, require accommodation
By Stuart Rudner
The recent death of Robin Williams shocked and saddened people across the world. In addition to the tremendous loss the public has suffered, and the sadness at such an untimely death, many people have been left wondering how someone that brought joy to so many people apparently suffered from depression so great that he could take his own life.
For many of us, Robin Williams was as far from the stereotypical case of depression as they could possibly imagine.
How does this relate to employment law? For employers, the situation is a reminder that your employees may be suffering from hidden disabilities that you are not aware of but that may be affecting their performance and might require accommodation. For employees, this may serve as a reminder that if you suffer from such a hidden disability, others, including your employer, are likely unaware of it and you should ask for help before the situation gets worse.
By now, we are all aware of the fact disability is a ground protected by human rights legislation and employers have a duty to accommodate employees with a disability to the point of undue hardship. If, for example, an employee suffers from a psychological condition such as addiction, his employer may be required to accommodate him by providing a leave of absence in order to seek treatment. However, a question that often arises is when the duty to accommodate is triggered.
Generally speaking, the process begins with a clear request for accommodation from the employee. When such a request is made, the employer is entitled to request sufficient medical documentation in order to allow them to understand the specific limitations upon the employee's ability to carry out their duties that require accommodation. While the employer is not entitled to other medical information, such as the diagnosis, in order to accommodate the employee, it has to know what must be accommodated. At that point, the onus will fall on the employer to assess whether accommodation is viable and, if so, in what form. In recent years, judicial decisions have been clear in their requirement that an employee seeking accommodation take part in the process, and that failure to provide appropriate information will, in most cases, relieve the employer of any obligation to accommodate.
So what happens when an employee has a need for accommodation but does not request it? Like many areas of law, the issue will come down to a question of reasonableness. If there was no way for the employer to be aware of the condition that requires accommodation, then it will not be expected to make any effort to accommodate. However, employers cannot simply bury their head in the sand and turn a blind eye to what is patently obvious; if the employer ought to have known, then most courts and tribunals will find that, at the very least, they have a duty to inquire.
Sometimes, employers will make efforts to determine whether there is a need for accommodation by asking an employee whether there are circumstances impacting their performance, or whether there are external factors that need to be addressed. Unfortunately, in many cases the employee will refuse to acknowledge any need for accommodation, perhaps due to embarrassment or fear. In that case, does the employer have to do more? As the old saying goes, "You can lead a horse to water, but you cannot make him drink."
Likewise, you can attempt to guide an employee toward accommodation, but you cannot force them to accept it. While every case is fact specific, employers are not expected to be mind readers. Where there are obvious signs of a disability or need for accommodation, employers should make appropriate inquiries. However, at a certain point, an employee's refusal to request accommodation or provide sufficient information to allow the employer to assess the viability of accommodation will disentitle them to any relief.
Apparently, Robin Williams had recently sought treatment in order to address his lifelong addiction issues. It does not appear, however, that he sought help for the depression that he apparently suffered from. Putting aside legal obligations, any individual that feels as though they cannot cope with their life and are in danger of harming themselves or others should seek help.
Similarly, anyone that is aware of someone else in such a condition should, morally, attempt to intervene. Legally, many employers adopt an attitude of preferring "not to know", as knowing will trigger an obligation to accommodate. However, as mentioned above, if the employer ought to know, then the obligation may be triggered anyway. That being said, employees should not assume they are entitled to accommodation unless they make a clear request for it.
Credit: Mario Anzuoni (Reuters)
Robin Williams, an Oscar-winning actor and groundbreaking comedian,
hung himself with a belt in his northern California, a coroner said
on Tuesday, based on preliminary findings.
