Further, when dealing with some chronic illnesses, such as
chronic pain and chronic fatigue syndrome, there may be little to
no evidence from independent objective sources, such as X-ray
reports or the results of clinical testing. With these kinds of ill-nesses,
the main identification may be done through an employee’s
self-reporting to a medical practitioner. There may also be changes
in the frequency and severity of symptoms. Given these various
complications, accommodating a chronic illness can be a chal-lenging
prospect. It is therefore helpful to keep the following key
points in mind.
APPLY GENERAL PRINCIPLES
As with all disabilities, chronic illnesses must be dealt with indi-vidually
with particular attention to the specific facts of the
case. What works for one individual may not work for the next.
However, the three key principles of dignity, individualization
and inclusion should be kept in mind when accommodating all
employees in the workplace.
Under the Ontario Human Rights Code, people with disabili-ties
have the right to have their individual needs accommodated
short of undue hardship, to allow them to perform the essential
duties of their job. It is important to remember that undue hard-ship
is a high bar to meet, and that “business inconvenience” does
not amount to undue hardship. However, if the employee cannot
meet the essential duties of their job with accommodation or if
accommodation would cause undue hardship, a decision not to
employ the individual may not amount to discrimination.
The accommodation process is supposed to be a collaborative
process – a “two-way street.” Once the employer is aware of an
employee’s needs, they must take steps to meet the duty to accom-modate.
On the flip side, however, an employer is not required
to accommodate a disability that it is unaware of. The employer
should accept accommodation requests in good faith unless there
are reasonable suspicions to indicate otherwise and the employee
must cooperate and provide information on relevant restrictions.
ENGAGE AND ASSESS
Once the need for accommodation is known, the employer should
take the first step to separate essential from non-essential job
duties. If the employee is unable to carry out any non-essential job
duties, generally the employee should either be accommodated so
that he or she can do so, or the duties should reassigned.
In order to accomplish this, HR professionals should consider
putting together a standard functional abilities form that can be
given to employees so that their medical practitioners can fill it out
and return it. While an employee may choose to voluntarily dis-close
the nature of the illness to the employer, it is generally not
appropriate for the employer to inquire as to the employee’s spe-cific
diagnosis either on the functional abilities form or in person.
BE REASONABLE AND CONSISTENT
Requests for medical documentation should be reasonable.
Employers should create or review their policies with respect to
requests for medical documentation and apply those policies con-sistently
In the case of chronic illnesses, it may not be reason-able
to repeatedly request medical notes for each and every
An interesting case study in relation to accommodating chronic
illnesses is found in the Supreme Court of Canada decision, Honda
v. Keays, 2008 SCC 39, wherein the plaintiff suffered from chronic
fatigue syndrome (CFS). One of the allegations was that Honda
discriminated against Keays by requiring him to bring in a doctor’s
note to justify each absence when employees with “mainstream ill-nesses”
did not have to do so. In this case, Keays requested to be
exempted from the requirement to provide a doctor’s note for each
CFS-related absence. Honda refused to consider this request and
was skeptical of his condition because of the “cryptic” nature of his
doctor’s notes and because his absences were more frequent than
However, the Supreme Court pointed out that since variable
self-reporting conditions are characteristic of CFS, it was arguable
that Honda acted in a discriminatory manner in subjecting him to
the kind of scrutiny he underwent and denying him accommoda-tion
for his disability.
The Supreme Court stated that while monitoring employee
absences is a valid objective, it can be done in a variety of ways.
Requiring a doctor’s note for each absence is only one way of doing
it and it may be discriminatory in context. Requesting semi-regular
updates from a physician regarding the nature of the symptoms
and course of treatment, checking in with the employee directly or
requiring doctors’ notes only when the number of absence exceeds
the expected number within a given timeframe were all cited as
possible reasonable alternatives.
Different monitoring methods would be reasonably appropriate
in different contexts. As the Supreme Court reiterated, individu-alized
accommodation is at the heart of the duty to accommodate
and is instrumental in creating a discrimination-free workplace.
In developing an accommodation plan, employers and employ-ees
should consider return-to-work aids such as ergonomic
IT IS IMPORTANT TO
REMEMBER THAT UNDUE
HARDSHIP IS A HIGH BAR TO
MEET, AND THAT “BUSINESS
DOES NOT AMOUNT TO
12 ❚ JUNE 2018 ❚ HR PROFESSIONAL