Employers may be surprised to learn that the duty to accommodate an employee with a disability isn't solely their responsibility.

"Accommodation is a two-way street, and the employee must participate meaningfully in the accommodation process," says Zack Lebane, an employment lawyer with Sherrard Kuzz LLP in Toronto.

Under human rights legislation across Canada, employers are required to accommodate employees with disabilities to the point of “undue hardship.” But it’s a two-way street, and the Supreme Court of Canada has confirmed that the “search for accommodation is a multi-party inquiry... To facilitate the search for an accommodation, the complainant must do his or her part as well,” mentions Lebane.

Gathering relevant information for planning

Disability management consultant Tara Beaton, owner of TaraBeaton.com in Kitchener, Ont., advises that employers should start by finding out "what specifically the worker can or cannot do — relative to the demands of their job — as a result of their health condition."

Understanding the expected timeframe for recovery is also important. Often, this information can be obtained by talking directly to the employee, but in some cases, documentation from the treating healthcare practitioner may be needed, she says.

Lebane adds that employees must provide sufficient medical and other relevant information to demonstrate they have a disability and require the requested accommodation. While employees have privacy rights, refusing to provide adequate information to their employer is done so “at their peril,” he said — referencing the ruling in Fernie (City) v. CUPE, Local 2093.

Reaching out and maintaining communication

Staying in communication with the injured worker throughout their recovery is important, says Beaton.

"Tell them they are missed by the workplace, and everyone looks forward to their return once it's safe for them to do so," she says. In some cases, it may be premature to contact the employee immediately, such as if they have been hospitalized or have requested not to be contacted yet, she adds.

Regular check-ins can help the employee feel supported and assist the employer with planning.

"It depends, but in most cases, regular check-ins — say, once every few weeks — can help," Beaton remarks.

Assessing limitations and accommodations

When preparing for a return to work, employers should focus on the employee's functional abilities rather than their specific medical condition. Beaton suggests asking questions like "Is there any specific job task you can't perform right now? If so, which?" and "What can you think of that would have to change in order for you to be able to perform that task?"

In a unionized context, Lebane says employers may require additional information. He points to a decision by arbitrator George Surdykowski which outlined items such as:

  • Nature of the illness and how it manifests as a disability (may include diagnosis in the case of mental illness)
  • Whether the disability is permanent or temporary, and the prognosis
  • Restrictions or limitations related to job duties
  • Basis for medical conclusions, including examinations or tests performed
  • Treatment, including medication and possible side effects

Privacy considerations

While respecting privacy, employers are entitled to certain information to facilitate accommodation. Lebane cites the Ontario Human Rights Commission, which outlines that an accommodation seeker is expected to provide:

  • That they have a disability
  • Limitations or needs associated with the disability
  • Whether they can perform the essential duties of the job, with or without accommodation
  • The type of accommodations needed to allow them to fulfill the essential duties of the job
  • Regular updates about when they expect to return to work, if on leave

Legal considerations across provinces

Additional considerations arise if an employee is using their sick leave under employment standards legislation, says Lebane. The rules vary by province — for example:

Ontario: An employer is entitled to ask for "evidence reasonable in the circumstances," which may include the expected duration of absence and confirmation that the employee was seen by a healthcare professional.

Quebec: Proposed legislation would prohibit employers from requiring a sick note for a leave of absence of three days or fewer.

Nova Scotia: Employers may not require a medical note unless the employee has missed more than five consecutive working days.

Prince Edward Island: Employers may only request a medical certificate for paid sick leave of three or more consecutive days.

Newfoundland and Labrador, New Brunswick, and Northwest Territories: Employers may request a medical certificate if the leave exceeds three or four consecutive days.

Maintaining workplace privacy and support

The worker who is off isn’t the only one an employer needs to worry about. Colleagues and supervisors may also require information — which can be a delicate dance if the impairment is visible or not, mentions Beaton.

"Share only the information that's relevant to the team's function,” she said. “Don't disclose specific details about the worker's impairment, emphasize respect for the returning worker's privacy, and encourage a supportive environment."

Implementing low-cost accommodations

Many accommodations have little to no associated hard costs for the employer. For example, adjusting a workstation or allowing more frequent breaks can significantly aid an employee recovering from a back injury, says Beaton.

She suggests exploring ideas for accommodation by consulting resources like the Job Accommodation Network's A to Z of Disabilities and Accommodations.

"Be aware that accommodation is often a dynamic process, one that may require adjustments over time," Beaton remarks. "Being flexible and open to feedback as a worker's condition evolves can ensure a smoother, more sustainable transition back to work."





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