As we slowly attempt to overcome the stigma surrounding mental health it is important for employers and employees to understand some of the challenges regarding identifying and accommodating mental health disabilities. Just like a physical condition, mental conditions can severely impact an employee’s work life.
Ontario Human Rights Code
Mental health is a protected ground under the Human Rights Code as it includes both mental and physical disabilities. Therefore, an employer has a duty to accommodate the employee meaning they must modify the workplace in order to meet the needs of employees requiring the accommodation, to the point of undue hardship. The duty to accommodate is a shared obligation and therefore both parties have obligations in the implementation of an accommodation.
Accommodating Employees with a Disability
The Code is aware that employees who have a disability may have difficulty performing some of the duties of their job. It is easier to identify physical disabilities and therefore easier for an employer to identify the need for accommodation but when it comes to mental health is not as simple. An employer’s obligation to pursue the duty to accommodate can vary depending on the circumstance but failure in doing so can result in the employee having a claim for lost wages, discrimination and possibly extraordinary damages, like punitive damages.
In Lane v. ADGA Group Consultants Inc (“Lane”)., 2007 HRTO 34 (CanLII), the Employee was terminated eight days into a job after a request for accommodation based on perceived disability. The employer’s position was that the employee was dishonest regarding his disability during the hiring process and misrepresented his ability to do the job. The Tribunal found that the employee was under no obligation to disclose his medical condition during the hiring process and which was upheld on appeal.
Once hired, an employee has an obligation to inform an employer of their need for accommodation, which is understood to trigger of the accommodation process. If an employee requires accommodation, the onus is on the employee to get the appropriate medical information to assist with the accommodation. That said, generally, the employer is not entitled to all medical information, be mainly the information necessary to implement an accommodation. Then the employer has an obligation to conduct the necessary research to get the accommodation. Once provided with this information, the employer is seen to be the driver of the accommodation process.
What happens when the disability is not disclosed?
In Lane, the employee did not initially did not disclose his disability out of fear of being stigmatized during the hiring process, however when he did, the employer had not fulfilled their duty to accommodate. It is possible for an employee to go months without voluntarily disclosing a disability or even ever disclosing it at all and are not legally obliged to do so. The second way in which the duty to accommodate is triggered is when the employer ought to have known about the disability (see, for example, Mackenzie v. Jace Holdings Ltd., 2012 at paragraphs 31 to 45). This duty is the duty to inquire whether a disability might be the cause of poor performance prior to taking steps that adversely affect the employee’s employment situation. As mentioned above, determining if an employee with a mental disability requires accommodation can be quite difficult. However, the employer has a responsibility to both the organization and the employee to take action if they suspect mental health issues. Some of the ways in which an employer may be able to determine this are:
- Increased absenteeism or lateness
- Lack of focus resulting in poor performance
- Significant decline or changes in performance
- Decreased engagement
- Significant changes in behaviour
An employer is still able to enforce their performance or behavioural expectations on employees, but it is important to take into consideration whether mental illness may be a contributing factor. Mental health issues do not completely rationalize punishable behaviour. For example, if an employee tends to have increased absenteeism and fails to provide medical documentation to support such absences, then they may possibly be in breach of an internal policy with their employer (see, for example, Salim Al-Saidi and Brio Beverages Inc.). Even if the employee may be suffering from a mental illness, disciplinary action can be justified if the employer can prove that the disability was not the root cause of the employee’s poor performance or misconduct for which the employee suffers adverse treatment.
What can an employer do?
If an employee voluntarily discloses a medical condition, ask them about it and find ways in which you can assist in the accommodation process which may likely involve a medical opinion. In addition, communicate the readiness of available resources such as an Employee Assistance Program and providing substantial training for at least management and executive employee on indicators of mental health issues and how to navigate them can develop preventive measures in terms of liability.
As an employer, it is important that you foster a positive culture and facilitate an environment that is conducive to positive mental health. Many individuals suffer from mental illness and it is important that employers are armed with the knowledge, training and resources to assist employees impacted by this. Below is a non-exhaustive list in the prevention and accommodation of mental conditions.
- Flexible work hours
- Setting attainable goals
- Managing expectations
- Providing insurance benefits and employee assistance programs
- Having an accessible anti-discrimination policy
Monkhouse Law can help both employees and employers navigate these difficult issues. Contact us today for a free consultation.