Many employees suffer from various mental health related issues such as stress, addiction, depression, or anxiety. Sometimes the employer is cooperative with respect to any help the employee may need to deal with these issues and sometimes the employer is not. When the employer is not accommodating the employee will often wonder what their rights are in terms of their mental health at the workplace. Are they allowed to take stress leave? Are they allowed to make certain requests in terms of productivity or performance? Are they allowed to make changes to their work schedule? What supports can an employee ask from an employer when they are experiencing mental health related issues? This blog seeks to answer some of these questions.

Mental health is a prohibited ground of discrimination under Ontario’s Human Rights Code (“Code”) because it has been interpreted as a disability. The Code states that every person has the right to equal treatment in employment without discrimination or harassment based on disability (among other things).

The case law in Ontario sets out that what constitutes mental disability in terms of mental health is broad. For instance, anxiety and depression or addiction are all considered to be a mental disability that should be accommodated.

What is accommodation?

The Code sets out that an employer has a duty to accommodate an employee with respect to their disability (in this case their mental health). Accommodation means that the employer should alter or modify their workplace in order to allow the employee to continue to participate in the workplace despite their disability. Examples of accommodation could be that the employer alters an employee’s schedule or allow for changes to tasks required of the employee or providing leave for employees. What would be considered accommodation would vary based on employee and workplace and the circumstances at hand.

In Ontario, the employer has both a substantive and procedural duty to accommodate an employee’s mental health disability. The procedural duty ensures that the employer gets all relevant information about the employee’s mental health issue as it relates to the workplace. This may not include an actual diagnosis but would generally include such pieces of information like the employer’s current medical status, when they believe they would recover or what tasks they could perform in relation to their job. Then the employer must give consideration as to what steps they may take in order to accommodate the employee given what information they acquired.

However, there are limits to the above and that is the employer should accommodate the employee as long as it does not result in undue hardship to the employer. This is the substantive duty the employer must show that it can or cannot accommodate the employee’s mental health disability to the point of undue hardship.

What is undue hardship?

The employer does not have a duty that would force accommodation regardless of circumstances. However, the standard is generally considered to be a high one and usually results in the employer having to go to pretty far lengths to ensure that their employee has been successfully accommodated. For instance, providing time off to the employee, allowing a flexible work schedule or allowing for a reduction in productivity demands or changes to tasks would generally be considered to not be undue hardship to an employer. However, undue hardship could arise if there were certain safety concerns that could not be met or the costs of accommodation were just too high.

However, there is no specific criteria set out in statute or jurisprudence that determines undue hardship. Generally, the courts will look at the set of circumstances at hand to determine whether there was undue hardship. For instance, the courts will look at the workplace itself, the industry the workplace is in, whether there was a collective agreement, what the employee’s role was in the workplace was, what policies or procedures the employer had…etc.

It is also the employer’s onus to show that they could not accommodate the employee without undue hardship.

What happens if the employer refuses to accommodate?

Failure to accommodate an employee’s mental health related issue could constitute discrimination under the Code and therefore a human rights complaint. The employee may also bring a civil claim against the employer for common law and statutory damages in a wrongful dismissal lawsuit. Depending on the circumstances, the employee may also be entitled to punitive and general damages.

How can Zeilikman Law help?

The challenge that lies at the centre of these issues is the duty of the employer to accommodate employees who have mental health issues to the point of undue hardship. Both employers and employees need specific advice in order to assist them in how to navigate these at times difficult and nuanced concerns. The best course of action for an employer or employee to take in these circumstances would be to approach an employment lawyer to assist them in figuring out what their next steps should be. For instance, an employment lawyer can provide legal advice, assist the parties in determining a solution or even help to prepare workplace policies or other documents to try to avoid these concerns moving forward.