Bosses must accommodate a mental health issue
This article is part of a series addressing popular topics and questions that clients and the public may have about the legal profession.
Employees should feel safe disclosing a mental illness because they have the right to be protected under the Human Rights Code, says Shannon Sproule, a lawyer at Turnpenney Milne LLP. But given the societal stigma and the vulnerability attached to such a disclosure, the employee should also look at the company structure and determine the best avenue for it – for example, possibly going to human resources rather than a direct supervisor.
“The concept of safety really depends on the environment and the process that’s available,” says Sproule, whose practice involves employment law and human rights.
Whether to disclose is almost always up to the employee. Most jobs in Canada do not require employees to disclose a mental illness, lawyers Melanie Samuels and Talya Nemetz-Sinchein told Canadian HR Reporter in 2020. There are exceptions, however, such as police and airline pilots.
Sproule says that if a specific type of employment requires mental health disclosure because of safety requirements, for example, those jobs would typically have “thorough and detailed processes in place,” informing the employee of what they need to know before they receive a job offer.
There are also circumstances in which an employer must inquire. The employer should ask when they know or perceive – or the facts are such that they ought to know or perceive – that a mental health condition is at the root of a workplace issue, say Samuels and Nemetz-Sinchein. They add that managers and supervisors should be able to spot signs such as “increased absenteeism, poor work performance, irritability, lack of cooperation and engagement or overtly emotional behaviour.”
When these clues are present, the employer should address them. The conversation could allow the employee to disclose their difficulties and request accommodation. Samuels and Nemetz-Sinchein caution that it is best for the employer to raise the issue “in the context of concern over work performance” and come prepared with specific instances substantiating their concerns. The employer should tell the employee that disclosure is “strictly confidential,” and the conversation should occur with two employer representatives present and a union representative if the workplace is unionized, they add.
If the employee is uncommunicative or denies the problem, “disciplinary action could be possible given that the employee provided no explanation for their poor performance,” said Samuels and Nemetz-Sinchein.
When the employee does disclose a mental health condition, the employer must “enter into the procedural aspects of the duty to accommodate,” says Sproule. This process involves communicating with the employee to determine how to accommodate.
“The focus for the employer is on what the employee needs in terms of accommodation, with the goal of treating them like a valued employee, maintaining their employment, and providing them with meaningful work that keeps them as close as possible to their regular duties,” she says.
The employer must collect enough information to implement the appropriate accommodation. Depending on the company’s structure, this may involve turning to a third party or HR. At this point, the employer should expect medical disclosure from the employee to help inform the nature of the accommodation, says Sproule.
She says that going directly to HR or the department or person responsible for processing accommodation requests is often the best way to get accommodation in place. That route would protect the employee’s privacy. They would not have to share private medical information with their manager. And the manager could focus on taking cues from HR or the department or person responsible.
The nature of the accommodation depends on the needs of the employee. With an addiction, for example, the employer would need to view symptoms, such as absences, through “an accommodation lens,” says Sproule. Instead of writing them up for an absence, the employer would need to see it as a mental-health symptom and find a way to accommodate, she says.
Sproule has also seen cases – pre-pandemic – where employees need to work from home or modify their work schedule, allowing them to take more breaks, work for shorter periods or take time off. “There are ways to use the workforce to support the employee if they have to be absent for a while.”
The Ontario Human Rights Commission’s policy on preventing discrimination based on mental health disabilities and addictions says organizations covered by the Human Rights Code must accommodate “to the point of undue hardship.” The code prescribes that there are only three factors employers can consider when assessing whether an accommodation rises to undue hardship: “cost,” “outside sources of funding, if any,” and “health and safety requirements, if any.”
“From my experience, the most common factor of undue hardship for an employer would be health and safety requirements,” says Sproule. “For example, if someone’s operating machinery, there could be a symptom that affects their ability to do that. That could be an example of health and safety as undue hardship.”
But even in those circumstances, the employer could offer the employee alternative duties if the company has other roles available.
Sproule often sees court cases where an employer has anticipated hardship without arriving there by showing that they have attempted to accommodate the employee first.
“In general, undue hardship, it’s hard to satisfy,” she says.