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[HR] Can I Discipline Employees, Though They Have a Disability?

“Can I discipline my employee, even though they have a disability?” is a question that I frequently get asked.  Disciplining an employee who has a disability does require some extra consideration and care, but it is not something that an employer should shy away from if warranted and valid based on the circumstances.

Here are some best practices when it comes to disciplining an employee who is known to have mental or another disability, and tips on how to proceed:

  • Firstly, after any incident, the employer should conduct a full investigation to establish the circumstances, determine if the behavior or event has occurred before, was any coaching or orrective action offered to the employee?
  • Generally, conduct a brief analysis of gathered information, establish the facts and decide whether what has occurred is related in any way to the disability.
  • Part of that analysis will be to interview the employee and any witnesses about what happened.
  • During this time, the employee in question may inform the employer that their conduct was caused by a disability- however, they may not. It’s the employer’s task to ask questions and determine the facts that will then lead them onto making further enquiries on whether there’s a disability at play.
  • If the employer determines that the conduct was caused by a disability, then disciplining the worker carries a risk of a human right complaint or, in the unionized sector, a grievance.
  • Once it is determined that a disability has caused the lapse or behavior in question, the employer must consider whether they are required to accommodate the employee’ disability.
  • As applicable and as appropriate, refer the employee to your company sponsored Employee and Family Assistance program(EFAP), and additional counselling. It is important to conduct regular follow up to assess progress. Record these instances.
  • HR and management also needs to assess what accommodations may be necessary in each individual case, based on the specific circumstances. Also determine what accommodations your company can offer “to a point of undue hardship”.
  • This does not at all mean the employer is forbidden from addressing the conduct with the employee. It is well within their rights to do so.
  • Ideally a coaching conversation, accompanied by a formal reprimand letter, clearly stating that the behavior in question is not to happen again, should be provided to the employee. The letter should also include what the employer will do to support the employee and their disability and the availability of accomodation if necessary.
  • The risk of disciplining the employee without the above steps, and before fully understanding the facts of the case, including the nature of the disability, and considering their duty to accommodate, will potentially result in a Human Rights complaint.
  • If it is established that the conduct is not as a result of any disability – then of course the employer can proceed with progressive discipline or termination (depending on circumstances) without worry.

More help and guidance?

If you’d like to discuss or get additional guidance on this topic, or any other HR matter, you can call the complimentary HR Advice helpline provided by Beneplan for its members. As a Beneplan client you also have access to resources available to you under the “HR Toolkit” section of our member portal of our website, once you log in.