Whether you are an employer or employee we encourage you to read this blog. This blog seeks to provide some basic information so that the reader can better understand what obligations exist with respect to stress leave due to mental health in the workplace. First, we will look at whether employees are entitled to stress leave due to their mental health. Secondly, we will set out what can happen if an employer refuses to allow an employee to take stress leave. And finally, we will also provide some information on how Zeilikman Law as employment lawyers can assist either employers or employees to effectively navigate these issues in the workplace.

We would like to point out that mental health struggles are common. Many Canadians will experience mental health related concerns in their lifetime. In our employment law practice, we
have helped both employees and employers alike with concerns about mental health issues in the workplace and accommodation of those mental health issues.

Are Employees Entitled to Stress Leave?

In our experience, in most cases the employee is entitled to stress leave due to mental health related issues.

There are two main pieces of legislation that will be at play in such cases. The first is Ontario’s Employment Standards Act, 2000 (“ESA”). The ESA allows employees to take a variety of unpaid leaves from their employment and these leaves can be used by the employee to address any mental health issues.

The second is Ontario’s Human Rights Code, 1990 (“Code”). Mental health is a prohibited ground of discrimination under the Code. This is because the Code’s definition of disability includes both mental disability and mental disorder which has been interpreted liberally by Ontario’s courts and, as such, common mental health struggles like anxiety or depression are considered a mental
disability.

The Code sets out that an employer has the duty to accommodate an employee with respect to their disability (in this case their mental health) and accommodation means that the employer may need to create changes in working conditions so that the employee can continue to work at the workplace despite their disability. A common way to allow for accommodation of mental health related issues would be to allow the employee to take stress leave.

In Ontario, the employer has both a substantive and procedural duty to accommodate an employee’s mental health disability. The procedural duty is that the employer must get all relevant information about the employee’s mental health issues as it relates to the workplace. This does not mean that the employee must provide the employer with the employee’s actual diagnosis.
However, this would include things like the employee’s general medical status, when they will recover, what is their ability to perform the tasks of their job or can the employee perform alternative tasks, etc. It can sometimes be difficult to determine exactly what accommodations are needed (stress leave included) but it is best that the employer take a full consideration as to what
accommodations are needed by their employee and what steps they should take to support their employee. In short, the procedural part of the employer’s duty is to see what accommodation options there are available.

The substantive duty is that the employer must attempt to actually implement the accommodation. The employer will have to show whether it can or cannot accommodate the employee’s mental health issues to the point of undue hardship. How this looks will change based on the facts of each situation. However, the point being here is that the employer does not have a duty to accommodate the employee in all circumstances. Generally, stress leave should be available to an employee related to their mental health and there will only be three considerations in the assessment as to what will constitute undue hardship. These are: cost; outside sources of funding, if any; and, health and safety related requirements, if any. No other considerations are allowed to be considered.

Therefore, things like employee morale, customer or client preferences or business inconvenience will not be regarded as adequate considerations in the employer’s assessment whether the
accommodation in question constitutes undue hardship. The bottom line is that in most cases it is considered reasonable accommodation for the employee to take stress leave due to mental health issues. How long those leaves are is generally what is more debatable and will be set based on the employee’s own unique circumstances.

What happens if the employer refuses to allow the employee to take stress leave?

There are a few things that could happen if the employer has unreasonably refused to allow the employee to take stress leave for a mental health related reason. For example, the employee could bring a human rights complaint under the Code. The employee may also bring a civil claim against the employer for constructive dismissal including common law and statutory damages for termination pay and potentially severance pay, other general damages as well as punitive damages and legal costs.

How can Zeilikman Law help?

Accommodation for mental health through stress leave is a common issue in a lot of workplaces. It is very important to learn how to address these issues whether you are an employee or employer.
Navigating these issues can be complex and worrying, so it is best to approach an employment lawyer for advice on how to tackle these issues.

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 to help them figure out what appropriate steps to take to reach a positive resolution.

Zeilikman Law has helped both employers and employees deal with mental health issues and stress leave in the workplace by providing legal advice, preparing various policies, correspondence or other documentations, helping to negotiate a resolution to these issues, etc.