The Duty to Inquire: How to Have Difficult Conversations with Employees

Having difficult conversations with employees can be daunting, especially when there might be an underlying disability at play. If you believe an employee is exhibiting behaviour or performance concerns that could be related to a disability, you have the obligation to inquire if they require work accommodations before engaging in performance disciplinary action.

Under the Ontario Human Rights Code, employers have a legal duty to accommodate individuals to the point of undue hardship. This also includes the duty to inquire. Many managers struggle with how to have a supportive conversation, especially when the disability is invisible or cognitive in nature.

It is critical that you protect the confidentiality of the employee, which means that conversations should be focused on their function at work, rather than their specific diagnosis or treatment. Here are some tips to having functional conversations with employees about potential work accommodations.

Before the Meeting

Before a conversation takes place, prepare yourself and the employee with the right expectations, tone, and environment.

1. Know your employees well to understand changes in behaviour. Establish regular touchpoints with your employees to open lines of communication and provide performance feedback. This can give you insight into an employee's personality and work habits, making it easier to notice any significant changes in behaviour. If you notice changes, you should understand if the employee has changed or if your perspective/observations have changed. Regular communication also ensures that performance feedback isn't coming as a surprise, which can make the employee more comfortable when the discussion arises.
2. Set up a meeting in a private space. A confidential space will help the employee feel more able to open up while protecting privacy. If you think the employee may be significantly distressed, make sure the area is also safe for you.
3. Prepare by documenting your concerns. Make sure your observations are objective and well-documented. Documentation should include specific examples of the behaviours or performance issues you've noticed. This will help ensure that the conversation is clear and constructive in addressing the actual issues on hand.
4. Approach the conversation calmly. Ensure that you are in the right mental state to have the conversation. Feeling stressed or overwhelmed may cloud your judgement and empathy. Prepare your emotions by using grounding strategies, such as breathing techniques or going for a walk, before you sit down in a private space with the employee.

Having the Conversation

Employers should not try to diagnose disability or recommend treatment. Instead, in order to fulfill their duty to inquire, the employer should:

1. Be respectful, compassionate, and non-judgemental. The employee may feel pressured, guilty, or anxious. Coming from a place of care can help employees feel more comfortable disclosing their needs. The goal of workplace accommodation is to provide support and make sure the employee has the tools to be successful. Be ready to show them they are valued and that you are committed to helping them succeed.
2. Identify the performance/behaviour concerns. Clearly outline where you are seeing the gaps within their work tasks. Keep the discussion focused on essential job requirements and performance outcomes, providing objective examples. Say, “This is what I have noticed or seen.” Make sure any claims are true if coming from someone else.
3. Actively listen. After presenting your observations and concerns, allow the employee to talk. As a manager, you may feel tempted to jump in with advice, solutions, or next steps. Tolerating silence leads to a productive conversation, giving the employee space to express their needs and potentially suggest specific accommodations.
4. Ask probing questions, but do not request medical information. While you can’t inquire about symptoms, diagnosis, or medical treatment, you can ask the following:
   • What is the nature of the behaviour/performance concern?
   • How can we improve the behaviours being demonstrated?
   • Is there a need for an accommodation of functional limitations? How can the manager and organization help?
   • How long does the employee expect the accommodation to be required?
   • What duties within the workplace can the employee still perform?
   • You can request a functional healthcare note from a physician outlining the employee’s abilities.
5. Keep the conversation focused on work tasks. If the employee starts discussing their medical details, steer the conversation back to how their condition impacts their work. Ask task-focused questions to determine which tasks or portions of tasks are challenging. Come prepared with suggestions for strategies to assist with focus, memory, or time management, and work together to develop a plan.
6. Focus on strengths. Remind the employee that although they may have difficulty in one area, they also have many strengths that can help them be successful. Help them reflect on their skills and strategies that can be incorporated into solutions.
7. Reiterate the supports available. Explain the employer’s duty to accommodate all disabilities and refer the employee to any internal accommodation policies or workplace supports, such as an EAP program.

Navigating Tricky Conversations

When having conversations with employees about potential work accommodations, you may encounter resistance or reluctance. The following strategies may help you navigate those tricky conversations.

1. Validating the Employee

It’s important to acknowledge an employee’s feelings, even if you don’t fully understand their experience. Instead of assuming understanding, try saying, “That sounds difficult” or “That sounds distressing.” This validates their feelings and can encourage them to share more.

To probe for more information, ask open-ended questions. For example:

• "Can you tell me more about what you’re experiencing?"
• "What specific challenges are you facing right now?"
• "How can I better support you in your role?"

2. When Employees Say They Don’t Need Help

If an employee says they are fine or don’t need help, it’s important to respect their response while still expressing your concern and willingness to support them with accommodations if needed. You might say, “I understand you’re saying you’re fine, but I want to make sure you know that I’m here to support you if anything changes. Let’s set a follow-up meeting to check in again.”

3. Ensuring Accountability

If an employee continues to struggle but does not ask for support, you may need to move through a performance improvement or management route. This process involves clearly communicating expectations, documenting any ongoing issues, and reinforcing the standards required for the role. This provides the employee a framework of accountability. 

In your follow-up meetings, you can reinforce your expectations: "I expect that you are on time and respectful to colleagues."

Remind them that your goal is to help them succeed and that you are open to discussing any adjustments that might assist them in meeting their job requirements: "We can revisit this if you feel you need any adjustments in the future."

4. Maintaining Morale and Confidentiality

Managing the impact on team morale is crucial. Coworkers might notice an individual’s accommodations and become concerned about fairness and transparency. While you can’t share specific details about accommodations or diagnoses, you can reinforce the importance of confidentiality and team support by redirecting back to the employee’s own needs and workload:

• "Every person is supported in different ways, and it’s important to respect their privacy. If you have concerns about your workload or need support, please let me know how I can help you."

How Can Gowan Consulting Help?

If an employee is struggling, make a referral or contact us to learn more about individualized mental health support or accommodations support to help your team stay healthy and at work. We also provide Manager Mental Health Training to train leaders on best practices for supporting employees in distress. If you have a large group of leaders requiring training, contact us to learn more about customized group training.