What is the Duty to Inquire and Why is it Important for Ontario Employers?

Employers in Ontario must be aware of a lesser-known yet significant accommodation obligation – the duty to inquire. This legal requirement dictates that employers have a responsibility to address concerns if they believe one of their employees is displaying unusual behavior that may necessitate accommodation.

The duty to inquire obligates employers to address potential accommodation needs when they observe enough ‘red flags’ pointing to an employee requiring assistance in performing their duties.  It is crucial not to make assumptions, but rather to approach the situation with empathy. The duty centers on politely raising concerns with the employee and asking if they need help.

What Approach Should Employers Take When Addressing Employee Concerns?

While employers cannot legally inquire about an employee’s diagnosis, they are encouraged to pay attention to changes in behavior that may signal personal struggles, abuse, addiction, or mental health concerns. Red flags may include consistent tardiness, unexplained absences, insubordination, or emotional volatility. Note that these red flags may also constitute grounds for discipline, which is why it is key for employers to inquire with employees about whether they require accommodation before taking disciplinary measures.

When employers notice these red flags, they should approach the employee privately to ask if they need assistance or access to resources. Following up with an email to confirm the conversation not only ensures documentation but also reflects a genuine commitment to supporting the employee. If the employee declines assistance, documenting this response can also mitigate liability down the road if the employee tries to allege that they were discriminated against or reprised against as a result of their disability.

What Legal Liabilities Can Employers Face for Neglecting the Duty to Inquire?

Failure to inquire can lead to serious consequences for employers. If an employer ignores their duty to inquire and rushes to discipline them for unsatisfactory behaviour, it may be viewed as a failure in the accommodation process, potentially resulting in liability for damages related to wrongful dismissal and human rights violations.

The duty to inquire is a powerful tool for employers to create a supportive and inclusive workplace. By recognizing signs of potential employee struggles and proactively addressing them with empathy and respect, employers can fulfill their legal obligations and contribute to a workplace culture that values employees’ wellbeing. Staying informed and proactive in carrying out the duty to inquire is crucial for Ontario employers committed to upholding human rights and avoiding legal liability.

How Can Whitten & Lublin Assist you?

If you are an employer who would like to learn more about your obligations, Whitten & Lublin would be happy to assist you. Contact us online or phone 416-640-2667.

Author – Carson Healey