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An employer’s duty to inquire into mental illness

mental illnessIn any given year, 1 in 5 Canadians experience a mental health or addiction problem. Although mental illness is often invisible, we should not underestimate its prevalence in Canadian society. Despite the growing popularity of mental health campaigns such as “Bell Let’s Talk”, mental illness remains a highly stigmatized issue. Employees are often reluctant to confide in their employers about mental health issues due to their fear of losing or jeopardizing their job, facing judgment from colleagues, or because they are embarrassed to ask for accommodations. As an employer, navigating the fine lines of mental health can be quite challenging especially since mental disabilities are usually more difficult to detect than physical disabilities.

Typically, an employee has the responsibility to inform the employer that he or she requires an accommodation because of a disability. However, as outlined in the Ontario Human Rights Commission’s Policy on  preventing discrimination based on mental health disabilities and addictions, where an organization is aware, or reasonably ought to be aware, that there may be a relationship between a disability and someone’s job performance, the employer has a “duty to inquire” into that possible relationship before making a decision that would affect the person adversely, such as disciplining or terminating the employee. This procedural dimension of the duty to accommodate is known as the “duty to inquire”. This obligation exists to protect employees with mental health issues from discriminatory treatment by their employers.

In what circumstances does the duty to inquire arise? An employer may notice than an employee has been absent from work lately or has been acting unusually erratic. In addition to attendance and behavioral issues, the employee may also exhibit performance issues. These could all be signs of a mental illness. Even if the employer has not been formally advised of the mental illness, if the employer suspects that the employee may have a mental illness based on changes in their behavior, then the duty to inquire arises. Before disciplining an employee – especially a termination – the employer must make meaningful inquiries into whether and how the employee can be accommodated.

For example, in Mellon v. Human Resources Development Canada 2006 CHRT 3, an employee’s normal behavior and work performance changed. The employer noticed that she was crying at work and she mentioned that she was stressed at work. The employer terminated the employee. The Canadian Human Rights Tribunal concluded that the employer should have inquired after noticing a change in the employee’s performance and attitude.

It is also important to note that many persons with substance abuse problems will not admit to having an addiction which is considered a disability under human rights laws. Dealing with this kind of situation is particularly difficult especially when there are signs of substance abuse (i.e. change in physical appearance, personal hygiene issues etc.) Nevertheless, an employer has a duty to inquire in some cases about an employee’s potential addiction.

If an employer is aware of facts that suggest a mental health issue exists, the duty to inquire before disciplining or terminating the employee can be triggered even if the employee does not openly disclose the disability.

For example, in Krieger v. Toronto Police Services Board, 2008 HRTO 183, a police officer was involved in a traumatic incident where he struggled with a suspect who carried a handgun. He began experiencing Post-Traumatic Stress Disorder (PTSD) symptoms. Shortly after this, the officer overreacted to another incident. The employer fired him for the over-reaction. The Ontario Human Rights Tribunal (“the “Tribunal”) found that the employer believed that the officer could be experiencing PTSD, but took no steps to accommodate him.

As evidenced in McLean v. DY 4 Systems, 2010 HRTO 1107, an employer cannot deny the existence of a disability by relying on its own failure to inquire, especially when it is aware of facts that suggest the employee has an illness. The mere fact that an employee does not formally request accommodations does not release the employer of its duty to inquire into whether the employee requires accommodations.

It is also important to note that employees are not required to disclose their exact diagnosis to receive accommodations for their mental illness. If an employee provides a medical note to his/her employer that does not specify the employee’s exact mental illness, the employer still has a duty to inquire and request further information about the medical condition. This information is required to determine the most appropriate accommodation.

In Lombardi v. Walton Enterprises, 2012 HRTO 1675, the employer argued that the medical note submitted by the applicant failed to specifically identify that the applicant was being treated for depression and a hypothyroid condition. The employer was already aware from other incidents that the employee was depressed and having suicidal ideas. However, if the employer wanted further information, it had both the right and the duty to inquire. The Tribunal concluded that while an employer has a right to require that an employee provide medical documentation in order to properly fulfill the duty to accommodate, the employer cannot sit passively, fail to inquire about this information, and on that basis refuse accommodation because of lack of relevant information. When employers inquire about an employee’s mental illness, they can request relevant information about the employee’s disability. This includes information about the employee’s current medical condition, their ability to perform job duties, and their capacity to perform alternate work duties.

Given the prevalence of mental illness in Canadian society, if an employer has a wellness program and/or short-term disability benefit plan then making employees aware of these benefits on a regular basis will increase the chance these benefits will be accessed.

Accommodating a mental illness does not only benefit the employee, but it also makes good business sense. Enabling employees with mental illness to access support can increase their productivity in the workplace. Furthermore, if individuals with a mental illness are able to receive treatment early, then long-term disability costs may be avoided.

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Doug Macleod

Employment and labour lawyer at MacLeod Law Firm
For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at doug@macleodlawfirm.ca. Read more
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