By Rob Lamberti, AdvocateDaily.com Contributor
There are growing legal expectations for employers to be more proactive in accommodating employees who are dealing with mental health crises, says Toronto employment lawyer Doug MacLeod.
With one in five Canadians experiencing mental health concerns at some point in their lives, it’s not something companies should shy away from discussing, he tells AdvocateDaily.com.
“Historically, there was quite a societal stigma where people often suffered in silence. Sometimes they paid a high price, with managers disciplining or terminating workers because they did things beyond their control,” MacLeod says.
Open discussion about mental health has helped shift attitudes and underscored the legal obligations of employers.
“The duty to accommodate has always been there; it is just being fleshed out a bit,” he says.
If an employer has a concern regarding substance abuse or a mental health challenge, they are required to talk to the employee about it. Failing to do so could have financial and legal consequences, MacLeod says.
“If an employee is showing objective signs of mental illness, the Ontario Human Rights Tribunal has placed a duty on the employer to inquire before disciplining,” he says.
In one case, a dismissed worker was reinstated and paid $35,000 compensation for “injury to his dignity, feelings and self-respect,” after the tribunal found he was not properly accommodated for Post-Traumatic Stress Disorder before he was involved in an incident at work.
“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,” the Ontario Human Rights Commission notes in its policy on preventing discrimination based on mental disabilities and addictions.
MacLeod says if an employer suspects alcohol or substance abuse, that could trigger the duty to accommodate, meaning the employee must be given an opportunity to disclose a disability.
“In some cases, you may have to ask, ‘Is there anything causing this attendance problem’ or whatever issue,” he says. “Traditionally this duty to accommodate has been around the edges of the law, but now it’s coming up in cases.”
Employers will “run into all kinds of problems” if they discipline employees when there are objective signs of mental health disabilities, including substance abuse, MacLeod points out.
“If employers react inappropriately, they’re going to get their hands slapped,” he says. “The duty hasn’t changed, but now it’s becoming more common as more people are coming forward.”
MacLeod says people with mental health issues who have been dismissed from their jobs should review their situations with legal counsel to investigate a potential human rights violation.
“Under the Human Rights Code, a person can claim indefinite lost wages,” he says, citing a case where a dismissed worker suffering from a mental disability was awarded 10 years of back pay.
“There seems to be so much anxiety and depression today. I don’t know if that’s due to the general stress of living in the 21st century, but many seem to be afflicted, and it’s often triggered or exasperated by a co-worker or supervisor,” MacLeod says.
It’s becoming more common, for example, for employees to provide doctors’ notes stipulating that the accommodation they require is to not work with another employee or manager, the source of the anxiety, he adds.
Accommodation has two components, MacLeod explains.
“The procedural duty involves a manager and worker discussing the nature of the disability and the scope of the accommodation required.
“The substantive duty involves assessing the reasonableness of the chosen accommodation as well as the reasons for not providing it, including proof of undue hardship,” he says.
The seminars, open to employers, will be held in Toronto on Oct. 16, and in Barrie on Oct. 20. They will focus on three issues, including accommodating employees with mental health disabilities, preparing for a Ministry of Labour inspection, and updating employee contracts to reflect changing legislation. Contact Judy Lam to register.