May 11, 2018
This article has been updated as of January 27, 2021.
It can be challenging for employers to fulfill their legal duty to accommodate an employee under human rights laws regardless of the nature of the request – but particularly so when the request is to accommodate a mental disability. Yet the growing prevalence of mental illness combined with the significant negative impact of the COVID-19 pandemic on Canadians’ mental health make it critical that employers understand their duty to accommodate mental disability in the workplace.
The 2020 COVID-19 Pandemic. Perhaps no other single event in recent history has led to a greater decline in the mental health of Canadians generally, and Canadian workers in particular. According to Morneau Sheppell, as of December 2020, Canadians’ mental health has been lower than it was before COVID for nine consecutive months and our general psychological health continues to decline. This includes Canadian workers who have had to adapt to changing conditions in all aspects of their lives, including work. The most stressful: health and safety protocols (45%), public interaction (34%) and job uncertainty (29%). Those reporting job uncertainty as the most stressful work adaptation have the lowest mental health score, followed by 24% who report work strain/overwork and 13% who report a change in work location. Many Canadians (28%) are considering a job or career change because of that workplace stress and their employers’ response to COVID-19. And it’s showing; 35% of supervisors say they’ve had concerns about employees’ mental health since the start of COVID.
Mental Illness. Concerns about the increased incidence of mental illness existed even before the stress of the COVID-19 pandemic hit. According to the Centre for Addiction and Mental Health, 20% of Canadians will experience a mental illness in any given year and 500,000 Canadians are unable to work due to mental illness – and thus mental disability – in any given week. In fact, mental illness is a leading cause of disability (30% of disability claims and 70% of disability costs relate to mental illness). And it’s not just a Canadian challenge; according to the World Health Organization (WHO), it’s a worsening global challenge.
Recent years have seen a laudable effort to increase visibility and understanding of mental illness and the disabilities it causes. But despite this, employers can still find it challenging to fulfill their duty to accommodate mental disability in the workplace. Here are five practical tips to help employers do so.
Employers do have a role to play in their employees’ mental health in the workplace – but that role has limits:
Legal Duties. Employers’ legal duties to employees extends to mental disability.
Limits. The employer’s role is, however, limited. It can be tempting to go further and play a greater role. Resist this temptation. There are risks associated with doing so for the employer – and for the employee:
The employer’s duty to accommodate is triggered when the employer knows of the employee’s need for accommodation. The most obvious situation is where the employee expressly communicates their need for accommodation of a mental disability. But disclosure of a mental disability can be hard for an employee. We’ve come a long way in removing the stigma surrounding mental illness and disability, but it’s not completely gone. One of the greatest challenges that employers – and employees – still face with accommodation of mental disability is employees’ reluctance or refusal to share their challenges or information due to fear of stigmatization, denial or privacy concerns. Some employers take the view that no news is good news because an employee’s disclosure triggers obligations for the employer that can sometimes be challenging for it to fulfill. But it benefits no one – the disabled employee, their co-workers, or ultimately the employer – to have a disabled and likely unproductive employee in the workplace. Knowing there’s a need gives the employer the ability to manage the issue and its workplace for the benefit of all. An employee who might or does have a mental disability is more likely to come forward when they perceive the employer is open to them and their needs. Some ways in which employers can create a workplace culture that’s perceived to be – and is – mentally healthy include:
Implement an Accommodation Policy. A well-written and properly implemented accommodation policy can be key: it can set the tone in a workplace by acknowledging the employer’s and the employees’ role in the accommodation process and clarifying acceptable and unacceptable behaviours; and it can play a role in encouraging disabled employees to seek the assistance they need, giving employees a good sense of the process to follow and what to expect if they do require and seek accommodation.
Participate in workplace mental health initiatives. There’s no shortage of campaigns and programs intended to raise awareness around mental health generally, and mental health in the workplace specifically. For example, the Canadian Mental Health Association (CMHA) offers many accessible resources and promotes mental health awareness with its annual CMHA Mental Health Week, as does Bell Canada’s Bell Let’s Talk. The resources for employers and employees are numerous and free. Use them.
Respond appropriately. If an employee does ask for accommodation based on mental disability, accept that request in good faith, and avoid stigma, stereotypes, and assumptions about mental health.
The employer’s duty to accommodate is also triggered when the employer “ought to have known” of the employee’s need for accommodation.
Duty to Inquire. Even without a formal notification or specific request from the employee of an accommodation need, the employer has a “duty to inquire” when it has information or the circumstances are such that it ought reasonably to have known of a reason, such as a disability, for which the employee might require accommodation. Examples include when:
Signs. It’s not the employer’s role to diagnose an employee’s mental illness. But in light of the duty to inquire, it’s arguably in employers’ best interests to train managers and supervisors to be aware of and alert to mental illness signs and symptoms or indicators that suggest an employee might be suffering from one, such as:
Response. If the employer forms the suspicion an employee is suffering from a mental illness that’s affecting them in the workplace raising a duty to inquire, the best approach in many cases is to meet privately with the employee to discuss its concerns. Before doing so, get prepared and think about:
When an employee seeks accommodation of a disability, either physical or mental, the duty to accommodate is nuanced by the employer’s need for and right to medical information – and the employee’s privacy rights in that medical information. This can make for a difficult and delicate balancing act, but it’s a balance the employer must achieve if it is to fulfill its legal duty to accommodate.
Employee Obligation. The employer’s legal obligation to accommodate an employee’s disability is based on the presentation of reliable evidence, as opposed to a mere assertion, that the employee suffers from a disability and that their disability prevents them from performing their normal tasks. The employee must demonstrate each of the following to trigger the employer’s duty to accommodate a disability – generally with medical evidence:
“Disability”. Whether a condition or illness is a disability depends on the circumstances of each case, and not every illness or medical condition amounts to a “disability” protected under human rights law. Each human rights law has its own definition of disability and/or mental disability. However, courts and tribunals give human rights laws a broad and expansive interpretation. The Supreme Court of Canada has also said that the definition is a flexible, multi-dimensional approach that emphasizes human dignity, respect, and the right to equality, rather than merely on the bio-medical condition, that it may be real or perceived – and a person may have no limitations in everyday activities except those created by prejudice and stereotypes. This means courts must consider both a person’s biomedical condition and the circumstances in which a distinction is made.
Medical Information. Personal medical information is inherently private, but this privacy right isn’t absolute. The employer’s duty to accommodate obligates it to carefully assess the employee’s particular circumstances. This means the employer (and all those involved in the accommodation process) must have the relevant facts about the disability. Similarly, the employee has an obligation to participate in the accommodation; this includes providing the employer with all the information relevant to both establishing their disability and to meeting their accommodation needs. If the employer asks the employee to provide detailed information about her medical condition so it can devise an appropriate accommodation then, assuming the information is reasonable and necessary to do so, the employee must provide it. If they don’t provide reasonable medical information, a tribunal, arbitrator or court could decide that the employee doesn’t have a disability that requires any accommodation by the employer, or that the employer has satisfied its duty to accommodate the employee’s known restriction(s). It’s important to remember that the information sufficient to support an absence from work might not be sufficient to support an accommodation request.
Permitted medical information. Generally, the employer can request, and the employee should provide, the following medical information so the employer can satisfy its duty to accommodate – provided the employer’s request is limited to that which is needed:
Second opinions & independent medical examinations (IMEs). The employer may require a second medical opinion or ask the employee to produce additional medical information to support the existence of a disability or an accommodation request – but only if there are reasonable grounds to do so. There might also be circumstances in which the employer is entitled to require an employee to undergo an independent medical examination (IME) by a physician other than the employee’s own physician to properly ascertain an employee’s ability to work. That doesn’t mean, however, that employees must always submit to an IME when requested; the request must still be reasonable and justifiable based on the facts of any given case, such as where the medical information the employee’s physician provides is inadequate and unreliable. And employers must be careful what information they provide to an independent medical examiner to ensure the process is fair and objective. For example, the employer’s suspicions about the employee’s motivation for returning to work aren’t likely of value to the medical examiner, and could only serve to colour the examiner’s judgement, and sharing them could justify an employee’s refusal to attend for examination. Employers should be careful not to “tip the scales” when providing information to the independent medical examiner, or else risk undermining the process.
Exercise some patience. Obtaining the necessary medical information in the context of a mental disability can pose some particular challenges beyond employee privacy concerns – and can demand some degree of patience from the employer. An employer’s frustration and impatience has resulted in many unfavourable human rights awards against employers. Employers are more accustomed to – and more comfortable with – dealing with physical disabilities, which are often visible and for which the nature of the disability, and often the restrictions, are more readily articulated and understood. In contrast, it might be difficult to achieve the same level of understanding of the nature of, and restrictions associated with, a mental disability. And treatment of mental health disabilities is often complex, involving ongoing and varying treatments where the patient’s restrictions and needs can change, and involving multiple doctors, counsellors and other medical professionals. This can translate into a longer time frame for the employer to obtain the medical information it needs to determine the employee’s restrictions or limitations so it can formulate appropriate accommodation solutions – and fulfill its legal duty to accommodate.
Confidentiality. Given the continued stigmatization of mental illness, it’s not surprising that employee’s concerns about the confidentiality of their medical information is particularly acute when it’s about their mental health. Whenever the employer does obtain medical information from or about an employee of any kind, it’s critical to take steps to maintain the confidentiality of that information. The employer should share it only with those who have a need to know – but make sure to share what is necessary with those who do need to know and understand their duty to accommodate.
Once the employer has confirmed the existence of the employee’s mental disability, triggering its duty to accommodate, the employer must move on to identifying and evaluating the options to accommodate its employee, and ultimately either:
“Undue” hardship. The “undue hardship” requirement creates the limit to which the employer’s duty to accommodate extends: employers’ legal duty to accommodate an employee’s mental disability continues to the point of “undue hardship”. This means employers are required to suffer some hardship – just not an “undue” amount. The bar is high, and there are many factors relevant to quantifying the level of hardship, including: financial cost relative to the employer’s size; disruption of a collective agreement; problems of morale of other employees; the interchangeability of the workforce; the adaptability of facilities; and the magnitude of any safety risks and the identity of those who bear them.
Options. The accommodation options are based on the specific facts in each case, but there are a wide range of possible accommodations for employees with a mental disability that might work. Some are self-evident, but others aren’t – so be creative when identifying and evaluating possibilities. At each step of the process and in respect of each option, the employer should thoroughly – and genuinely – consider the option, canvass the pros and the cons of each using specific criteria (for example, the criteria against which undue hardship are assessed) and document its process fully and in detail. Some common accommodations of mental disability include:
Fit to Work. Ultimately, however, the employment contract is an exchange of work for pay. Every employee – even one with a mental disability – must be fit to work and able to adequately perform tasks in a productive manner. If an employee isn’t fit to work in any position, the employer should place the employee on sick leave or a leave of absence. In addition, an employee with a mental disability isn’t entitled to any different treatment, or any greater level of job security, when the mental disability is unrelated to whether they can meet the job’s skill and performance requirements. Thus, an accommodated employee may be subjected to discipline for poor job performance where their poor performance in the position is unrelated to their disability.
Outside advice. Employers aren’t expected to be experts in mental health or mental disability. Mental illness and the mental disability it can cause are complex medical issues, and there may be times when the employer needs to seek expert medical advice or guidance – but ensuring the confidentiality of the employee’s medical information is maintained. Employers seeking to fulfill their duty to accommodate can often also benefit from legal advice.
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2018. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entire
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