Toronto, ON — March 25th, 2026 — When I started here at Protea LLP, I imagined days filled with reading case law and neatly drafting memos. And yes, there is some of that. But it turns out real workplaces come with real questions, the kind you cannot solve with a citation or a Latin phrase.
Questions about puzzling attendance issues, hybrid work holdouts, jokes that fall flat, and the classic dilemma: Is this a performance problem, a human rights concern, or somehow both?
Welcome to “Dear Counsel”, where every 6 weeks I will unpack the workplace challenges that land in my inbox using legal insight, practical judgment, and a growing familiarity with the ESA. I may be new to law, but I am here, fully caffeinated and ready to help you navigate the wonderfully complicated world of managing people. Send me your trickiest questions; I have already got a fresh research tab open.
Let us sort this out together.
Recent Question Received
“Dear Counsel,
I am trying to support an employee who requested accommodation for a medical issue. We have asked for medical information to understand restrictions, but they insist that providing anything beyond ‘I can perform tasks as tolerated’ is intrusive. I want to do the right thing, but I also need enough detail to manage the workplace. How do I balance compassion with my legal obligations? How much am I allowed to ask without getting myself into hot water?”
What Is the Duty to Accommodate
At its core, the duty to accommodate is a human rights obligation under the Human Rights Code. Employers must accommodate employees who face barriers at work that relate to protected grounds such as disability, religion, or family status.
As the Supreme Court of Canada explained in Hydro Quebec v. Syndicat des employe-e-s, 2008 SCC 43, paras. 14 and 16, the goal of accommodation is to ensure that an employee who is able to work can do so. This means the employer must accommodate the employee in a way that does not cause the employer undue hardship but still enables the employee to work.
How the Accommodation Process Works
It is important to remember that adjudicators will not only look at the outcome or decision of the accommodation process, but they will also examine how you got there. Here is how it typically works when considering an accommodation request based on disability:
- The employee identifies a need: The employee tells you they have a disability that affects their work. Even if the employee does not explicitly tell you about the disability, but you ought to have known about the disability based on the circumstances of the case, the duty to inquire may be triggered.
- The employer requests documentation: You may request reasonable information, not a diagnosis, to understand functional limitations. Employees, and unions, have a duty to participate in the accommodation process, which includes providing sufficient information.
- Review the information and make a plan: The employer should review the restrictions and limitations and determine whether an accommodated position can be offered without causing undue hardship. While there should be an open dialogue with the employee, and the union where applicable, the employee does not get to choose their perfect accommodation.
- Implement, monitor, adjust: Accommodation is rarely a single step. Ongoing conversations and adjustments are often required.
Document all of the steps you have taken throughout the accommodation process.
Employers Are Not Entitled to a Diagnosis But They Do Need Functional Information
Human rights law across Canada draws a clear line: employers are not entitled to know an employee’s diagnosis or detailed medical history. That information is private and generally irrelevant to the accommodation process.
However, employers are entitled to know:
- What the employee can do
- What the employee cannot do
- Any restrictions or limitations
- Whether restrictions are temporary or permanent
- The anticipated duration of restrictions, if known
- Any workplace modifications recommended by the treating professional
This is not intrusive. It is the minimum information required to fulfill the duty to accommodate to the point of undue hardship. Without it, employers cannot assess risk, assign duties safely, or determine whether accommodation is even possible.
“Perform tasks as tolerated” Is Not Enough
Statements such as “I need flexibility” or “I can work as tolerated” do not provide actionable information. They do not tell an employer:
- Which essential duties are affected
- Whether the employee can work full hours
- Whether the employee can perform physical tasks
- Whether the employee can meet deadlines or productivity expectations
- Whether the accommodation is short‑term or long‑term
Employers are not required to guess. In fact, guessing exposes the organization to legal risk: either by under‑accommodating (and facing a discrimination claim) or over‑accommodating (and creating safety or operational issues). Moreover, an employer may find it impossible to staff if it cannot rely on what work the employee is, or is not able to do.
Common Misconceptions
“If it is medical, the employer should not ask anything.” Not true. Employers must seek functional information.
“Accommodation means the employee gets their preferred solution.” No. The standard is reasonableness, not preference.
“Employers must accommodate forever.” Accommodations often change over time and may require updated medical information. There is often a difference between what can (and should) be done in the short-term verses what can be done in the long run.
“The employer has to figure it out on their own.” Incorrect. The process is collaborative, not a guessing game.
Summary of how to Handle Vague Accommodation Requests:
In summary, what an employer needs to do is:
- Provide a short form or template
Ask for restrictions, capabilities, and expected duration in a simple format such as a Functional Abilities Form. Go back to the employee’s own medical provider before seeking clarification from another medical provider. - Clarify why “performing work as tolerated” isn’t enough
Provide a letter to the medical provider explaining that you can’t identify reasonable options without understanding what tasks are affected. - Keep your collective agreement in mind
Review your collective agreement to determine whether there are steps that you must take, or whether the union is required to be involved at various stages. - Use interim measures when appropriate
Consider whether it is appropriate to offer short‑term, low‑risk adjustments while waiting for proper information. - Document all steps
Record requests, information sought, what was provided, and decisions made. We have mentioned documenting your steps twice in this article, so it must be important. - Reassess when new information arrives
Update the plan and set check‑ins as functional details become clearer.
The duty to accommodate requires individual analysis. The steps outlined above are a guideline but if you’d like support reviewing your accommodation policies or procedures, or need further advice on a tricky situation, Protea LLP is ready to assist.
