Authors: Laura Rask and Abby Beavereye
Employers are generally familiar with the duty to accommodate employees with disabilities. Less understood is the related “duty to inquire.” This obligation can arise even where an employee has not formally requested accommodation.
The framework is straightforward. Human rights law prohibits discrimination based on disability and requires employers to accommodate to the point of undue hardship. This duty has two components:
- Employers must gather sufficient information about an employee’s limitations;
and - Employers must implement reasonable accommodation where required.
In most cases, the process begins with disclosure. Employees are expected to advise their employer of a disability and provide supporting medical information. However, the law recognizes an important exception. Where an employer knows, or reasonably ought to know, that a disability may be affecting performance, the employer may be required to take the first step.
Adjudicated cases show how contextual this analysis is. Where an employee’s conduct would normally justify discipline, such as repeated errors, absenteeism, or inappropriate behaviour, but there are signs that the behaviour may be connected to a disability, the employer is expected to ask questions before moving to discipline or termination. The obligation is not to diagnose the employee or secure medical evidence on their behalf. It is to pause, raise the issue, and request appropriate clarification: see Canadian Union of Public Employes, Local 21 v Regina (City), 2024 CanLII 49762 (SKLA).
For example, in Wall v Lippé Group, 2008 HRTO 50 (CanLII), an employee who had experienced workplace trauma exhibited declining performance and emotional instability. Although the employee did not clearly frame the issue as a disability requiring accommodation, the surrounding circumstances were sufficient to trigger further inquiry. The employer’s failure to consider whether a disability was contributing to the
performance concerns led to a finding that the duty to inquire had not been met. This
case was cited with approval by our own Saskatchewan Court of Appeal in Haghir v
University Appeal Board, 2019 SKCA 13.
The consistent theme is that context matters. A medical event followed by cognitive difficulties, visible mental health struggles, repeated requests for medical leave, or a marked and unexplained decline in functioning may each trigger the employer’s duty to inquire. Conversely, a single isolated mistake, without more, will not generally trigger the duty. The standard is reasonable awareness, not perfection in hindsight.
For employers, the practical takeaway is reasonable judgment. Before relying on performance deficiencies to justify discipline or dismissal, consider whether there are objective indicators that a disability could be a contributing factor to the performance issues. If so, document the concern, raise the issue with the employee, and conduct further inquiries into the root cause of the performance issue. Ignoring clear warning signs can convert an otherwise defensible employment decision into a finding of discrimination.
For employees, the practical takeaway is to understand your rights. If you are struggling with a medical condition or disability that affects your work, your employer may have a legal obligation to inquire and consider accommodation before taking disciplinary action or termination. Keep records of symptoms, medical events, and communications, and provide supporting medical information when requested. If you were terminated while experiencing a disability and your employer failed to make any inquiry, this could be a breach of their duty and may give you grounds to challenge the termination or argue that it was unjust.
If you have questions about your situation, our Employment Law Team is can help you understand your options.
This article is intended for general informational purposes only and should not be taken as legal advice. It does not address the specific circumstances of any individual case and is not a substitute for obtaining advice from a qualified lawyer. Reading this article does not create a solicitor-client relationship, and you are encouraged to consult legal counsel before making any decisions regarding your legal rights or obligations.
