The Duty to Inquire: Proactive Compliance in BC
Beyond the Request: Understanding the Employer’s Duty to Inquire In BC, an employer’s legal responsibility doesn’t always start with an employee’s request.
In the British Columbia human rights landscape, many employers believe their legal obligations only begin once an employee explicitly asks for an accommodation. This is a dangerous misconception. Under BC law, the "Duty to Inquire" mandates that if an employer observes a significant change in an employee’s behavior or performance that could reasonably be linked to a protected ground (such as a disability or family status), they have a legal responsibility to check in before taking disciplinary action.
Imagine a high-performing employee who suddenly becomes chronically late or irritable. While a standard reaction might be a formal warning, the duty to inquire suggests that the employer should first ask, "Is there anything we can do to support you?" or "Is there a barrier preventing you from meeting these standards?" This proactive step is not about prying into private medical details; it is about demonstrating that the organization is willing to accommodate potential needs.
Failure to inquire can be fatal to an employer's defense at the BCHRT. If a worker is terminated for performance issues that were actually symptoms of an undiagnosed mental health struggle or a new caregiving crisis, the Tribunal often finds that the employer failed in its procedural duty. By the time a complaint is filed, it is often too late to claim ignorance.
For BC managers, the duty to inquire should be viewed as a risk-management tool. It allows for early intervention, often resolving the issue through a simple schedule adjustment or a temporary leave of absence. When an employer can prove they reached out to offer support and the employee either declined or failed to engage, the employer’s legal position is significantly strengthened. Ultimately, shifting from a "wait and see" approach to a "duty to inquire" approach fosters a culture of care that prevents grievances from ever reaching the Tribunal.
Manager’s Checklist: Executing the Duty to Inquire
Phase 1: Recognition & Observation
[ ] Identify the "Red Flags": Have you observed sudden, dramatic changes in performance, attendance, or behavior (e.g., a high performer becoming erratic, emotional outbursts, or chronic lateness)?
[ ] Rule out the "Normal": Is this behavior a significant departure from the employee’s established baseline or societal workplace norms?
[ ] Check for Ground Connection: Is there a reasonable basis to suspect the change might be related to a protected ground under the BC Human Rights Code (e.g., physical/mental disability, family status, or substance use)?
Phase 2: The Compassionate Inquiry
[ ] Select a Private Setting: Ensure the conversation happens in a confidential, non-threatening environment.
[ ] State the Facts, Not the Diagnosis: * Avoid: "I think you’re depressed."
Use: "I’ve noticed you’ve missed four deadlines this month, which is unlike you. I’m concerned—is there anything going on that we can support you with?"
[ ] Ask the "Magic Question": "Are there any barriers in the workplace—or factors we should be aware of—that are impacting your ability to perform your duties?"
[ ] Reiterate Support: Remind the employee of available resources, such as an Employee Assistance Program (EAP) or your internal accommodation policy.
Phase 3: Information Gathering (The "Need to Know" Rule)
[ ] Focus on Limitations, Not Diagnosis: Remember that in BC, you are generally entitled to know the restrictions (e.g., "cannot lift over 10lbs" or "needs a quiet space"), not the specific medical diagnosis.
[ ] Request Functional Information: If the employee confirms a need, ask for a functional assessment from their healthcare provider that outlines what they can and cannot do.
[ ] Maintain Confidentiality: Ensure all medical notes are stored in a separate, secure file—not the general personnel file.
Phase 4: Assessment & Implementation
[ ] Review Against Undue Hardship: Can the requested changes be made without creating significant safety risks or unaffordable costs?
[ ] Document the Search for Options: Even if the employee’s "preferred" accommodation isn't possible, have you documented the alternative "reasonable" options you explored?
[ ] Establish a Review Date: Accommodation is a process, not a one-time event. Schedule a follow-up to see if the changes are working.