Discriminating against Disabled Employees: Ontario Human Rights Commission Issues a New Policy

Mental disabilities: The Facts

Research estimates that almost one in five Canadian adults will experience a mental illness or addiction.

In the last version of the Diagnostic and Statistical Manual of Mental Disorders – The Fifth Edition (or DSM-5)the number of recognized mental disabilities increased. Mental disabilities include the generalized anxiety disorder, panic disorder, clinical depression, intermittent explosive disorder, insomnia disorder, and alcohol use disorder.

Until recently, people were generally reluctant to discuss mental illness. Thanks to Clara Hughes and the Bell Let’s talk program (letstalk.bell.ca) there is a more open dialogue on the topic and there is less stigma attached to mental disabilities. But the stigma persists.

Mental disabilities: The Law

According to the Supreme Court of Canada,

“There is no question but that the mentally ill in our society have suffered from historical disadvantage, have been negatively stereotyped and are generally subject to social prejudice.”

As a result, all jurisdictions in Canada have introduced laws to protect employees with mental health disabilities.

An employer in Ontario is prohibited from discriminating against an employee because he or she has a mental disability. Employers are required to accommodate disabled employees who have mental illnesses under the Ontario Human Rights Code (Code).

The Ontario Human Rights Commission’s new Policy

In June 2014 the Ontario Human Rights Commission released a new comprehensive policy in this area: “Policy on preventing discrimination based on mental health disabilities and addictions.” It does not have the force of law but the Ontario Human Rights Tribunal (tribunal) must consider it if one of the parties before the Tribunal asks it to do so.

This blog considers two practical issues that employers are required to address in this area.

1. If an employer thinks the employee has a disability, is the employer obliged to ask the employee if he or she has a disability?

We get calls from employers who think an employee with behavior issues or attendance problems has alcohol or substance abuse problems. And from employers who think an employee with excessive absenteeism is suffering from a mental illness; usually depression or anxiety.

On the one hand, an employer violates the Code if it treats an employee differently because it thinks an employee may have a mental illness or an addiction. The Policy states in part: “If organizations scrutinize people with known or perceived psychosocial disabilities based on stereotypes and assumptions, rather than actual behaviour, this may be a violation of the Code”

On the other hand, the Policy suggests an employer has a duty to ask the employee whether he or she has a disability. In this regard, Section 13.6.1 of the Policy called “Duty to inquire about accommodation needs” applies. It states in part: “Accommodation providers must attempt to help a person who is clearly unwell or perceived to have a mental health disability or addiction by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation.”

As a practical matter there is no easy answer. One approach is for an employer to consistently enforce its policies but provide an employee with an opportunity to explain his or her behavior before disciplining the employee for not complying with a policy. This provides the employee with an opportunity to disclose his or her disability as an explanation for the misconduct, poor performance, excessive absenteeism etc.

2. Does an employer have an obligation to assign an employee to another job if an employee cannot perform the essential job duties of his or her pre-disability job?

Section 17 of the Code essentially provides that an employer does not discriminate against a disabled employee if the employee is incapable of performing or fulfilling the essential job duties with accommodation. This suggests that if an employee cannot perform his or her essential job duties with accommodation then there is no violation of the Code.

On the other hand, Section 15.1 of the Policy called, “No accommodation is available that allows the person to fulfill the essential requirements of the job, tenancy, service, etc” states in part: “Although the employer does not have a duty to change working conditions in a fundamental way, it does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. This can include alternative work, a flexible work schedule, lightened duties or even staff transfers.” This part of the policy suggests that an employer may be required to assign an employee to an alternative position if the employee cannot perform his or her essential job duties.

In one case, Ellis v. General Motors of Canada Ltd., 2011 HRTO 1453 (CanLII), <http://canlii.ca/t/fmkcc the Tribunal observed: “While the law is still developing in this area, it has been recognized that, if this is not possible, the duty to accommodate can extend to consideration of alternate positions.  However, the duty to accommodate has not been considered to extend to granting an employee with a disability a promotion to which she or he otherwise would not be entitled.  In my view, doing so would extend beyond ensuring equal treatment for an employee with a disability, which is what is protected under s. 5(1) of the Code.”

In another case, McKee v. Imperial Irrigation, 2010 HRTO 1598 (CanLII), <http://canlii.ca/t/2bt3v the Tribunal stated, “…in addition to the substantive aspect of the duty to accommodate, there is also a procedural aspect to this duty under the Code that requires an employer to take active steps to inquire into the duty to accommodate, including how duties could be altered to accommodate the employee’s needs or what alternative positions might be available that would meet an employee’s needs.”

Again there are no easy answers. The size of the employer, and the number of vacancies in the workplace (if any) are facts that will likely be taken into account when deciding whether an employer must offer alternative employment to a disabled employee as an accommodation measure. An employer must address this issue on a case by case basis with legal advice.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions concerning your obligations towards disabled employees or employer obligations in general, you can contact him at 416 317-9894 or at [email protected]