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Mental illness is a leading cause of disability in Canada, with the Centre for Addiction and Mental Health estimating that at least 500,000 Canadians miss work every week due to mental illness.

With the COVID-19 exacerbating the mental health crisis in Canada, employee mental health continues to be a critical issue faced by employers and workplaces, which if ignored, can lead to significant and costly consequences for both the employers and employees, including in relation to claims for discriminatory treatment and/or wrongful dismissal.

Mental Health Protections at Law

Human Rights Legislation

The law recognizes the impact mental health disabilities may have on an individual’s employment. Specifically, the Human Rights Code (the “Code”) in Ontario protects individuals from discrimination with respect to termination of employment, denial of a job offer and denial of a promotion/workplace opportunity on the basis of a mental health disability.

The law also recognizes that individuals with mental health disabilities may need an accommodation to both access and benefit from employment opportunities. Accordingly, the Code imposes a duty on employers to accommodate the needs of people with mental health disabilities to the point of undue hardship. While there is no express definition for “undue hardship”, this has generally been interpreted by the courts/tribunals to mean that an employer is required to modify the workplace to meet the needs of the employee requiring an accommodation, unless doing so would be excessively costly, require outside sources of funding and/or impact the health and safety requirements of the workplace.

While the accommodation process often begins with an employee asking for assistance, in some cases, because of the nature of the mental health disability, the individual is unable to request assistance and accommodation. In this case, the employer is not absolved of their responsibility, but rather the employer has a duty to inquire if they believe that an employee has a mental health disability and requires assistance.

Health and Safety Legislation

Further, Ontario’s Occupational Health and Safety Act (“OHSA”) also imposes a duty on employers to provide a healthy and safe workplace, and this extends to providing a psychologically safe workplace. This may include taking reasonable steps to provide a healthy work environment that promotes employee well-being and productivity, providing mental health resources to employees and ensuring managing staff are trained to recognize and respond to an employee’s mental health issues.

Accommodation

Accommodation is a shared responsibility.

While an employer is expected to modify the workplace so that the environment can meet the needs of the employee’s mental health disability, the employee seeking accommodation is also expected to cooperate, share information, and look for solutions with the employer to implement an appropriate accommodation plan.

The goal of accommodation is to assist employees with mental health disabilities with remaining productive and carrying out their job duties.

Some accommodation strategies may include, but are not limited to, the following:

  • Commencing a medical leave and/or graduated return to work following the medical leave;
  • Implementing flexible scheduling, including adjustments to start/end times and/or hours/days worked per week;
  • Modifying the work location/environment, including by permitting the employee to work remotely;
  • Modifying the employee’s job duties reasonably, including by reducing the tasks assigned and/or engaging in re-training; and/or
  • Permitting more frequent breaks, including a 15-minute break every two (2) hours and/or an extended lunch period.

Failure of Employer to Accommodate

All requests for accommodation based on a mental health disability should be reviewed on a case-by-case basis. At a bare minimum, employers are expected to inquire and make reasonable efforts to accommodate any requests for modification to the workplace to the point of undue hardship.

Undue hardship is a high standard to meet. Employers fail to fulfill the duty to accommodate when, for example, they assess only whether the employee can perform the full scope of their job duties for their role given the accommodation.

Failure of an employer to accommodate an employee with a mental health disability to the point of undue hardship may amount to a breach of the Code and result in a finding of discrimination, lost wages, general damages and/or reinstatement against the employer.

Remedies for Employees

Case law confirms that employees with mental health disabilities have a right to accommodation with respect to their mental health needs under the Code and demonstrates the significant financial consequences of discrimination based on a mental health disability.

Where an employer has breached the duty to accommodate a disabled employee, the employee may be able to seek the following remedies from the court/tribunal:

  • Compensation for lost wages;
  • Compensation in the form of general damages for injury to dignity, feelings and self-respect;
  • An order that the employee be reinstated to their position (if dismissed for reasons relating to their mental health disability);
  • A declaration that the employer engaged in discriminatory conduct; and
  • An order that the employer ceases and refrains from further discriminatory conduct.

If you believe that you have been wrongfully dismissed for discriminatory reasons or your employer has failed to accommodate you in the workplace, please contact Toronto employment lawyers, Sultan Lawyers, at (416) 214-5111 or via email to khayward@sultanlawyers.com.

 

 


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