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Employers in Canada have a duty to accommodate employees who suffer from mental illness and poor mental health. Mental health and mental illness are not the same thing. Even though they are often used interchangeably. Mental health is no different to physical health in that it has a direct impact on an individual’s overall well-being. Emotions, feelings of connectedness toward others, thoughts and sentiments, and the ability to cope with external pressures, all contribute to our mental health.

According to the Canadian Mental Health Association, one in every five Canadians may have a mental health condition or disease in any given year. Further, this statistic may be underestimating the prevalence of mental health issues in Canada. This is because mental health issues can be difficult to identify and treat.

The law recognizes that employers are expected to accommodate an employee who has a mental health condition which impairs their ability to adequately carry out their role.

But what constitutes a mental disability?

A non-physical health issue does not always represent a mental disability, just as catching a cold does not always constitute a physical disability.

At Sultan Lawyers, we take mental health seriously. Read about how we prioritize mental health and wellness at our firm here

THE PROCESS OF ACCOMODATING EMPLOYEES AT THE WORKPLACE

  1. Gathering the Required Information

As an employer, it is important that you follow an appropriate accommodation procedure prior to evaluating whether you can accommodate an employee.

First and foremost, you must listen to an employee in good faith. This does not imply that you must take what they say at face value, and you have the right to ask an employee for confirmations where appropriate, for example, requesting relevant medical documentation.

  1. Best Practises for Accommodation

After gathering information and seeking guidance from your employment counsel (if needed), your next step should be to provide appropriate accommodations. Assess what may be undertaken to accommodate the employee while causing the least amount of interruption to the individual or workplace.

It is important to tailor your accommodation procedure to the individual employee (i.e., accommodations will be personalized to the employee in question).

Employers should accordingly consider accommodations such as:

  • adjusting the physical workplace;
  • changing work locations;
  • revising administrative or training frameworks;
  • restructuring workplace norms or requirements;
  • modifying the employee’s job assignments;
  • adjusting hours of work or schedules; and
  • giving the employee a leave of absence when assessing whether an employee can be accommodated.

ACCOMODATING EMPLOYEES FROM A LEGAL OPINION

Both courts and administrative tribunals have clarified that employers are expected to be diligent and proactive in identifying mental health issues in the workplace. This means carrying out comprehensive assessments to ensure that accommodation is not required.

In the case Crowley v. Liquor for instance, the Ontario Human Rights Tribunal commented on situations of complaints of mental disturbance that were determined to not fit within the definition of a disability for the purpose of human rights protection, including the following:

  • a simple declaration of anxiety, depression, or stress is not a condition in and of itself;
  • references to “personal and health difficulties” or “psychological disorders” in general; or
  • a one-line doctor’s statement noting that the employee would be out of work for a short time.

The Tribunal made it clear that employers are expected to examine all indications of potential mental health ailments, regardless of how benign it may appear at first glance. Read more about Stress Leave in Ontario here.

Further, an employer who dismisses an employee after receiving information indicating that he she may have a mental illness or other mental health related issues could be found to have wrongfully dismissed the employee. In this case, an employer may be found to have violated the Ontario Human Rights Code, even if the employee is incapable of articulating and/or formally establishing the presence of an actual mental disability.

As previously mentioned, employers are expected to respond to an employee’s request for accommodation in relation to mental illness or mental health in good faith. Though, if it is uncertain if the employee’s condition qualifies as a disability, the employer can request that the employee present appropriate documentation to support their condition.

TAKEWAY

Workplace mental health should be a priority for any business. Supporting a healthy work environment (including mental health) is important for all types of working environments but particularly for high-pressure environments, such as industries which require quick turnarounds and/or consistent management of complex matters.

Statutory and common law continues to remind employers of the importance of fostering inclusive workplace settings. We also expect that the law will continue to expand both the expectations on employers and enforcement of employee rights in this regard.

Employers would therefore be wise to actively respond to indicators of mental health issues, including being pro-active in seeking a solution. We recommend that processes relating to workplace management should be flexible, adaptive, and designed to manage both mental and physical health.

CONTACT US

If you are struggling with health-related matters and have found it has impacted your employment, or if you are an employer and believe you may benefit from support on workplace mental health matters, contact employment lawyers Sultan Lawyers, to discuss your options. Call us at 416-214-5111, or here.


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