The voluntary guidelines found in the 2013 release of the National Standard of Canada for Psychological Health and Safety in the Workplace may no longer be much of a voluntary standard for employers.
The Ontario Human Rights Commission (OHRC) released its 109 page Policy on preventing discrimination based on mental health disabilities and addictions Wednesday June 18, 2014. Chief Commissioner of the Ontario Human Rights Commission Barbara Hall speaking to the Canadian press about the new guidelines said that:
We believe it will be both a trigger and a tool,” and “When people understand that their rights are protected, (we hope) that they’ll be more willing to speak out.” Also “When employers realize that the law places obligations on them, they’ll be more likely to move proactively.”
Employers already had a duty to accommodate mental health disabilities and addictions before this latest release. For example the OHRC had set out some of the legal obligations for employers in its mental health fact sheet.
This fact sheet is short compared to the new OHRC Policy on preventing discrimination based on mental health disabilities and addictions. While the new policy purportedly aims to provide user-friendly guidance on how to define, assess, handle and resolve human rights issues related to mental health and addiction disabilities, it is 109 pages long and employers will need to take some notes and some time to digest its full impact on their relationship with employees.
Section 13: Duty to accommodate
The section that most employers will fast forward to is Section 13 which deals with the duty to accommodate. These duties are expanded much beyond the earlier fact sheet.
Forms of accommodation
For example section 13.5 suggests a more extensive list of forms of accommodation such as:
- modifying job duties
- making changes to the building (for example, building partitions in an open office space to increase someone’s ability to concentrate)
- providing job coaching
- referring someone to an employee assistance program
- providing alternative supervision arrangements
- providing alternative ways of communicating with the employee
- allowing for more training, or training that is delivered in a different way
- modifying break policies (for example, to allow people to take medication on a more frequent basis)
- allowing short-term and long-term disability leave
- allowing a flexible work schedule
- job bundling
- alternative work
Duties and responsibilities
Section 13.6 looks at duties and responsibilities in the accommodation process. The accommodation provider is required to:
- be alert to the possibility that a person may need an accommodation even if they have not made a specific or formal request
- accept the person’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
- get expert opinion or advice where needed (but not as a routine matter)
- take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions
- keep a record of the accommodation request and action taken
- maintain confidentiality
- limit requests for information to those reasonably related to the nature of the limitation or restriction, to be able to respond to the accommodation request
- implement accommodations in a timely way, to the point of undue hardship
- bear the cost of any required medical information or documentation (for example, the accommodation provider should pay for doctors’ notes, psychological assessments, letters setting out accommodation needs, etc.)
Duty to inquire
Section 13.6.1 outlines the employer duty to inquire about accommodation needs.
It emphasizes that mental health disabilities and addictions should be addressed and accommodated in the workplace like any other disability. In some cases, an employer may be required to pay special attention to situations that could be linked to mental disability. The guidelines state that even if an employer has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the Code. If the employer imposes serious sanctions or terminates the employee for poor performance, without any progressive performance management and attempts to accommodate, these actions may be found to have violated the Code.
Both the content of the policy and the public awareness campaign around the policy mean that employers will likely be participating in more accommodation of employees with mental health issues. The choice is not so much whether or not to voluntarily comply, but instead whether employers will be proactive in implementing mental health standards or whether they will be ordered to do so following a human rights complaint.
Are your managers prepared with the right tools to deal with employee mental health issues? One course that is increasingly marketed to employers is “Mental Health First Aid.” I haven’t had personal experience with this program but I’m interested in hearing if other employers have tried this or are considering it. Please share your experiences!
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