Ryan McCarville
Ryan McCarville, Lawyer, McInnes Cooper
Michael Murphy
Michael Murphy, Lawyer, McInnes Cooper
 

It can be challenging for employers to fulfill their legal duty to accommodate an employee under human rights laws regardless of the nature of request – but particularly so when the request is to accommodate a mental disability. Yet the growing prevalence of mental illness makes it critical that employers understand their duty to accommodate mental disability in the workplace. 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 going to get worse: the World Health Organization predicts that by 2020 depression will be the second most common disability after heart disease.

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 satisfy their duty to accommodate mental disability in the workplace. Here are five practical tips to help employers satisfy their duty to accommodate mental disability.

 1. Understand what your role is – and what it is not.

Employers have a role to play in their employees’ mental health in the workplace:

  • Duty not to discriminate. Employers have a legal duty under human rights laws not to discriminate in employment based on a host of enumerated “protected” personal characteristics. These protected characteristics vary to some degree depending on the applicable human rights law, and could include characteristics such as family status, sexual orientation and religion – but all prohibit discrimination based on mental disability. Embedded in this discrimination prohibition is employers’ legal duty to accommodate an employee’s protected personal characteristic to the point of undue hardship: to take steps to offset the discriminatory impact of a workplace rule, policy, requirement or practice by adjusting, revising, or eliminating it. Accommodation isn’t necessarily about ensuring that an employee remains in the workplace; it’s about taking steps so that an employee’s protected personal characteristic – like mental disability – isn’t the basis for excluding them from the workplace.
  • Duty to provide a “safe” workplace. Employers have a legal duty under occupational health and safety laws to provide a “safe” workplace. And there’s some legal authority for the proposition that this obligation encompasses an obligation to provide a psychologically safe, as well as a physically safe, work environment. Employers must be prepared to take steps that are reasonable in the circumstances to protect their employee’s physical and mental health. Some might argue that mental health is an individual responsibility with no connection to the workplace. But while each employee is responsible for their own health and work performance, the employer also has an essential role to play in creating a healthy work environment that fosters employee well­-being and productivity. This can include fostering a culture that’s inclusive and healthy, ensuring managers and supervisors are trained to recognize and respond to employee mental health issues, providing access to mental health resources for employees and meeting their legal obligations not to discriminate based on mental disability (or any other basis).

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 role is not to:

  • Be the employee’s mental health practitioner. The law doesn’t expect the employer to diagnose or treat an employee’s mental illness. And doing so could be dangerous for the employer and the employee. Mental illness and the disabilities they can cause can be complex and difficult to diagnose and treat – even for physicians and mental health practitioners. The employer will rarely have either the expertise or all of the information that’s required to do so, and an employee could come to harm if the employer attempts to play a role for which it’s not qualified.
  • Be the employee’s confidant. It can be easy for the employer (a manager or supervisor) to become the shoulder for the employee in the throes of a mental health challenge to lean on. The employer must – and should – exhibit compassion toward any employee faced with a mental health crisis or disability. But the manager that becomes too personally and closely involved might be less able to be objective. This could undermine their ability to ensure the employee has the resources and support they need, and to meet the employer’s legal obligations to both the disabled employee and to all other employees in the workplace.

2. Create a mentally healthy workplace culture.

The employer’s duty to accommodate is triggered when the employer knows of the employee’s need for accommodation. The most obvious example is where the employee expressly communicates their need for accommodation of a mental disability to the employer. 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 that there’s a need gives the employer the ability to manage the issue and its workplace for the benefit of all.

But disclosure 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 yet. One of the greatest challenges that employers – and employees – still face with accommodation of mental disability is employees’ reluctance or even refusal to share their challenges or information due to fear of stigmatization, denial or privacy concerns. An employee who may 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 make a request for accommodation based on mental disability, accept that request in good faith – and avoid stigma, stereotypes and assumptions about mental health.

3. Train managers & supervisors to be alert to signs of mental illness.

The employer’s duty to accommodate is also triggered when the employer “ought to have known” of the employee’s need for accommodation. So 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 the employer ought reasonably to have known of a reason, such as a disability, for which the employee might require accommodation. Examples include when:

  • An employer is made aware of the need for accommodation but doesn’t yet have information about the general nature of the disability and the employee’s related needs, such as medical information.
  • An employee’s conduct is such a departure from expected human behavior that the employer ought to have inquired about the existence of some circumstance requiring accommodation.
  • An employee’s poor job performance is so unusual for that employee that the employer ought to have inquired about the existence of some circumstance requiring accommodation.
  • The employer is about to take action that will negatively impact an employee, and the employee’s conduct or job performance is such that it raises the possibility of some circumstance requiring accommodation.
  • An employee expresses a desire to return-to-work following a disability-related absence.

So while it’s not the employer’s role to diagnose an employee’s mental illness, 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:

  • Consistent late arrivals.
  • Frequent (and perhaps unexplained) absences.
  • Lack of cooperation or difficulty working with colleagues.
  • Decreased productivity.
  • Increased accidents or safety issues.
  • Difficulty concentrating or remembering things.
  • Expressions of strange or grandiose ideas or ups-and-downs.
  • Decreased interest in or involvement with work.
  • Displays of unexplained anger or blaming others.

If the employer forms the suspicion that an employee is suffering from a mental illness that’s affecting them in the workplace such that it’s under 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:

  • Exactly what behavior or performance issue is of concern?
  • What’s the reason for the concern? For example, is the employee failing to meet an objective standard or is their behaviour having a negative effect on others?
  • What are the policies that apply if the employee does need mental health support or accommodation?
  • What resources does the employer have to offer the employee in that case?
  • What are some of the possible accommodations, at least in the short term, until the employee can provide the necessary information to address an accommodation request?

4. Gather all the medical information to which you are legally entitled.

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.

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:

  • The existence of a “disability”.
  • The limitations it imposes.
  • The relationship between the disability and the particular accommodation sought.

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.

Obtaining 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:
    • The general nature of the illness and how it manifests as a disability.
    • Whether the disability is permanent or temporary and the anticipated timeframe for improvement.
    • The restrictions or limitations that flow from the disability, particularly as they relate to the employee’s duties.
    • The basis for the medical conclusion (though not test results or clinical notes).
    • The treatment and medications (side effects) that may impact the employee’s ability to perform her job.
  • 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. 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.

5. Be thorough, genuine and creative when identifying & assessing accommodation options.

Once the employer has confirmed the existence of the employee’s mental disability that has triggered its duty to accommodate, the employer must move on to identifying and evaluating the options to accommodate its employee, and ultimately either:

  • Select and implement an accommodation option.
  • Demonstrate the differential treatment of the employee based on their disability (that is, the discrimination) is justified because it’s based on a “bona fide occupational requirement” (sometimes also called a “bona fide occupational qualification” or a “genuine occupational requirement”), and the employer either :
    • Can’t accommodate the employee at all without experiencing undue hardship.
    • Has accommodated the employee to the point where further accommodation will result in undue hardship to the employer.

“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 accommodations 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 fully – 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:

  • Flexible or modified scheduling. This could include changing the existing schedule, retaining the existing schedule or working reduced hours. For example, allow an employee with an anxiety-related mental disability to work earlier or later to avoid crowds, or permit more frequent or differently scheduled breaks.
  • Modified work environment. This could be changing the employee’s workspace or their location. For example, physically move an employee’s workspace, such as to a window to allow access to natural light, or allow an employee to work from home for some or all of the time.
  • Modified supervision. Consider modifying instructions or feedback, or providing coaching.
  • Modifying certain job duties. Adjusting the employee’s job duties, including changes in training, is another possible solution.
  • Individualized rate of absenteeism. Sometimes, the required accommodation is for the employer to simply tolerate a level of absenteeism that, but for the disability, would be unacceptable and excessive and allow for an individualized rate of absenteeism. For example, allow time off for employees to attend medical, counselling or therapeutic appointments.
  • Reassigned. An employer’s duty to accommodate can extend to reassigning job duties among employees, or transferring an employee to create or free up a position that an employee requiring accommodation can successfully perform.

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 she can meet the job’s skill and performance requirements. Thus, an accommodated employee may be subjected to discipline for poor job performance where her poor performance in the position is unrelated to her 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.

To discuss this or any other legal issue, contact any member of the Labour & Employment Team @ McInnes Cooper.  Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.

McInnes Cooper prepared this article for information; it is not legal advice.  Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2018.  All rights reserved.

About the author:

Ryan McCarville is a Labour & Employment lawyer at McInnes Cooper. Ryan advises employers on a wide array of labour and employment matters including human rights, employee discipline, employee termination, employment contracts, wrongful dismissal claims and workplace investigations. You can reach Ryan at ryan.mccarville@mcinnescooper.com.

Michael Murphy is a lawyer at McInnes cooper with a practice focused on labour and employment and pensions and benefits law. Mike advises employers on a variety of employment-related issues, including human resources policy reviews, employment contract drafting and terminations, human rights and occupational health and safety. You can reach Mike at michael.murphy@mcinnescooper.com.