You’re right to focus on your duty to accommodate while also managing attendance expectations—this situation involves both human rights and labour considerations, especially in a unionized environment. Here’s a structured employer approach you can take:

1. Understand Your Duty to Accommodate

Under Canadian human rights law (both federally and provincially), you have a duty to accommodate an employee with a disability to the point of undue hardship. Chronic migraines are often recognized as a medical condition that can trigger this duty, even if the employee hasn’t formally requested accommodation.

Key points:

The duty is triggered once the employer is aware (or ought reasonably to be aware) of a medical condition impacting work — a formal request isn’t necessary.

You can’t force the employee to disclose their full diagnosis, but you can require enough medical information to understand functional limitations and support planning.

2. What You Can Reasonably Ask For

Employers are entitled to request objective medical documentation that focuses on the employee’s work-related limitations, not the diagnosis itself. You should avoid intrusive questions, but you can ask for:

Confirmation that the employee has a medical condition affecting their ability to work.

The expected duration or pattern of absences (e.g., sporadic, ongoing, temporary).

Functional limitations (e.g., needs flexibility, cannot tolerate screens during migraines, can’t commit to early shifts).

Whether the employee is able to attend work regularly, and if not, whether a modified schedule or other accommodations would help.

Any recommended accommodations from the medical professional (e.g., flexible start times, remote work, reduced schedule during flare-ups).

It’s appropriate to provide the employee with a standard medical questionnaire or “fitness to work” form for their healthcare provider to complete. This avoids unnecessary disclosure while giving you the functional info you need.

3. Explore Reasonable Accommodation Options

Once you receive medical info, you must engage in a good-faith dialogue (often called the “accommodation process”). This may involve:

Modified work schedules (e.g., later starts, reduced hours during migraine episodes).

Flexible leave arrangements, such as using sick leave or unpaid protected leave when episodes occur.

Temporary remote work if the job allows and this helps the employee manage symptoms.

Job restructuring or reallocating certain tasks (where possible) to support regular attendance.

If the employee’s absences are unpredictable but medically supported, a reliable attendance record may not be a reasonable expectation—but you’re not required to tolerate unlimited absenteeism forever. The key is to determine whether accommodation is possible without causing undue hardship (e.g., excessive costs, significant disruption to operations).

4. Attendance Management & Undue Hardship

If the employee continues to miss work despite accommodations, or refuses to cooperate in the process (e.g., won’t provide sufficient medical info), you can:

Document all steps taken to accommodate and the employee’s responses.

Apply progressive discipline only if absences are not justified or the employee fails to engage in the process.

Ultimately, if accommodation is not feasible, you may reach a point of undue hardship, but this is a high legal threshold, especially in unionized environments.

In a unionized setting, it’s wise to involve the union in the accommodation discussions early. They may have established processes or negotiated provisions that can help.

Practical Next Steps

-Meet with the employee to explain your legal duty and theirs to cooperate in the accommodation process.
-Provide a medical questionnaire to clarify functional limitations (not diagnosis).
-Request medical documentation supporting their absences.
-Engage in the interactive process to identify accommodations.
-Document all steps carefully, in case the issue escalates or is grieved.
-Consider consulting legal counsel or HR specialists before moving to any discipline or termination due to non-attendance.

I hope this helps!

HRInsider Staff