Whether you are an employer seeking to better understand what your obligations are with respect to mental health in the workplace or an employee experiencing issues related to mental health at work and want to better understand your rights, we encourage you to read this blog. This blog attempts to unravel some of these issues, the first being accommodating mental health in the workplace. Secondly, we review some workplace mental health strategies for employers.
These issues around mental health and the workplace have really been brought to the forefront during the COVID-19 pandemic. Before the COVID-19 pandemic, 1 out of 5 Canadians struggled with or experienced a mental health issue or illness in their lifetime. The pandemic has done nothing but increase those numbers. For instance, according to Statistics Canada, surveys have indicated that now one in four (25%) Canadians aged 18 and older screened positive for symptoms of depression, anxiety or posttraumatic stress disorder (PTSD) in spring 2021, up from one in five (21%) in fall 2020. From our experience, there has been an increase in employees and employers alike coming to us with concerns relating to the mental health at work and accommodation including issues such as burnout, isolation, the blurring of boundaries between an employee’s personal and professional life, increased stress and anxiety and feelings of being overwhelmed.
Accommodating Mental Health in the Workplace
Accommodation is the most important issue when it comes to mental health and employment law. Mental health is a prohibited ground of discrimination under Ontario’s Human Rights Code (“Code”) because the Code’s definition of a disability includes mental disability and mental disorder. The jurisprudence shows us that mental disability under the Code has been interpreted by the courts in a liberal fashion where common mental health issues of anxiety or depression are considered a mental disability.
The Code sets out that the employer has a duty to accommodate the employee with respect to their disability. The employer would do this by changing how they do things in the workplace so that the employee would have an easier time taking part in the workplace. However, the limit to this accommodation is that the employer only must accommodate until the point of “undue hardship.” This means that the duty is not absolute but should vary from workplace to workplace and employee to employee. It will be determined based on the individual needs of the employee and what the employer can reasonably do to try to accommodate that individual.
Sometimes it can be difficult to assess what exactly those accommodation needs are as one of the problems with mental health illness is that it can vary across individuals. Some people’s symptoms of mental illness can be quite pronounced while others are much more subtle and difficult to pin down. This is also coupled with the fact that mental health is still somewhat of a taboo subject at work, it can be embarrassing and difficult for people to bring up to their employer or even clarify certain behaviours that they may be exhibiting.
The employer has both a substantive duty and a procedural duty to accommodate an employee’s mental health. The procedural duty is that the employer must get all relevant information about the employee’s mental illness as relates to the workplace (but not the actual diagnosis). This could include things like the employee’s current medical status, when they will recover from their condition, their ability to perform their job and whether they could perform alternative tasks or work, etc. The employer may fail their procedural duty to accommodate if they do not give any consideration to the issue of accommodation, including what, if any, steps could be taken. The employer cannot use any after-acquired evidence to support its position that it could not accommodate the employee. The employer’s efforts must be assessed at the time of the alleged discrimination.
Also, the employer cannot simply say they did not know about the disability as part of procedural duty to accommodate is to make reasonable inquiries or seek out information about whether there is a disability that needs accommodation. For instance, an employer cannot simply sit on issues like a decrease in performance or increased absenteeism or lateness that may reasonably be linked to the employee’s mental health status.
The substantive duty is that the employer must show that it can or cannot accommodate the employee’s mental illness to the point of undue hardship. This is the actual aspect of accommodation. However, what that looks like will change depending on the particular facts of each case. For instance, undue hardship could arise because of certain health and safety concerns that could not be met or that the costs of accommodation are just too high. A case that demonstrates the differences between the substantive duty and procedural duty to accommodate is Lane v. ADGA Group Consultants v. Inc. 2008 CarswellOnt 4677.
A Workplace Mental Health Strategy for Employers
The first thing that employers should do is to try to reduce any risks that may be in the workplace place that would be a barrier to positive mental health for their employees. Examples of this could be to put in place certain policies on workplace bullying or harassment as in our experience that has a significant risk to an employee’s mental health. There should also be a complaint process in place so that an employee may be able to bring to the attention of managers, superiors or HR any bullying or harassment that they see or are the victim of in a safe and secure way. There should be a way for an employee to ask for leave to deal with any mental health issues that they may have.
The second thing to recognize that accommodation will not look the same for every employee. Employers should be cognizant that they may have to do some investigation into what the employee’s mental health status is if there is some evidence that it may be an issue such as sudden chronic lateness or a reduction in productivity. To meet the procedural duty to accommodate and the employer should assess the employee’s needs for accommodation associated with the workplace.
Employers should know that the definition of mental illness has been interpreted by the courts quite broadly and it will include things like stress, anxiety, and depression along with other medical conditions such as schizophrenia or bipolar disorder. So, for example, things like flexibility in work hours or break times and flexibility in when and how they do their work could be accommodations that the employer should implement to assist the employee with their mental health status. Requests for leaves should be accepted. Allowing for counseling or treatment will also be something that should be accommodated. Remember that the employer needs to exhaust its accommodation obligations to the point of undue hardship. Factors that may be used to see whether the employer has reached the point of undue hardship are things like costs, outside sources of funding or other health and safety concerns. Health and safety risks could include any risks to other employees or even the public.
Finally, the employer should foster an open and positive culture surrounding mental health to facilitate a workplace culture that cultivates open and honest communication about mental health without stigma or judgment. Certain training or workplace policies may be put in place to be conducive to the above.
The challenge that lies at the heart of these issues is the duty of employers to accommodate employees who have or may have mental illness to the point of undue hardship. The challenge of accommodation is complex and part of the reason that makes accommodation complex is that it is fact-determinant. To use a colloquialism, there is “no one-size-fits” all here and each person needs to be taken as an individual given their own mental health issues, the job requirements and workplace.
Zeilikman Law can assist both employees and employers in the challenges relating to this area of employment law. Do not hesitate to contact Zeilikmaw Law if you have any questions. Our telephone number is (905) 417-2227.