The employer clearly has an obligation to make inquiries as to the employee’s medical restrictions. ¹

The employer must make a “meaningful inquiry” before acting to terminate based on a medical disability. One case concluded that the employer had failed, “on at least three occasions, to make any meaningful inquiry into whether the applicant was able to return to useful and available employment with reasonable accommodations”. The complaint was upheld. ²

The employer should obtain details of the employee’s current medical condition, the prognosis, any restrictions on the ability to do the job and capabilities for alternate work. ³

The duty to accommodate goes beyond investigating whether an employee can perform an existing job. It involves investigating whether something can be done to existing jobs to enable the employee to perform a job. ⁴

The evidence to be used to determine whether such accommodation was effected was that evidence available at the time of the accommodation, not that which subsequently became available. ⁵

It is a mutual obligation. The employee also has a duty to fulfill her own obligation to participate in the process. ⁶ Such an obligation of the employee is not to originate a solution, but rather to facilitate the implementation of the employer’s proposal. ⁷

The employee should provide timely advice as to any medical restrictions and should prudently consider any offers made of accommodation.

It is implicit that the employee will at least attempt a modified return to work before rejecting the offer, absent contrary medical advice. Where the accommodated offer meets the medical restrictions and is within the overall ambit of the skill set and experience and pay level, this is certainly a reasonable expectation. ⁸

The lack of advance notice from the company to the employee which would have allowed a rebuttal opportunity from the employee, ⁹ has been seen as influential in addition to the fact that the employer asked for no medical information.

Further the method of termination, which was by email to a vulnerable long-term employee, which had a severe impact on the employee, was also seen as relevant to the accommodation issue as a violation of the procedural obligation. The Tribunal, in particular, noted that the employer failed to ask for any medical information as to her ability to return to work.

The evidence showed a pre-determined intent to terminate the employee, without regard to her diagnosis, prognosis or ability to return to work. There was no BFOR established.

The test of accommodation with respect to medical issues is not limited to the time of termination, but rather should be made as a global contextual analysis taking into account the entirety of the time period of medical absences. ¹⁰ This will allow the decision maker to consider the history of medical absences prior to the date of termination.¹¹

It is not necessary for the disabled employee to demonstrate that he will be successful, notwithstanding the disability, to be allowed accommodation. ¹²

It is not necessary for the employer to demonstrate that a particular form of accommodation had failed before it could conclude that such a modified process should not be implemented.¹³