Employees’ mental health continues to be a critical issue faced by employers with at least 500,000 Canadians absent from work every week as a result of a mental illness.
The law recognizes the impact mental health disabilities may have on an individual’s employment, creating obligations for employers, which, if not abided by, can lead to costly consequences, including in relation to claims for discriminatory treatment and/or wrongful dismissal.
Overview of employer obligations at law
Human Rights Legislation
In Ontario, the Human Rights Code (“Code”) protects individuals from discrimination, on the basis of a mental health disability, in the employment context, including in relation to termination of employment, denials of a job offer and denials of a promotion/workplace opportunity.
The Code creates an obligation for employers to accommodate the needs of employees with mental health disabilities to the point of undue hardship.
Further, the Code also creates a duty for employers to inquire whether an employee requires assistance where the employer believes that an employee has a mental health disability. Specifically, by the nature of some mental health disabilities, employees are not able to request assistance and accommodation, and therefore, in these cases, the employer has a duty to inquire.
Health and safety legislation
In Ontario, the Occupational Health and Safety Act (“OHSA”) creates an obligation for employers to provide a healthy and safe workplace, which includes providing a psychologically safe workplace. This generally requires employers to take reasonable steps to provide a work environment that facilitates employee well-being and productivity, access to mental health resources and training for managing staff aimed at recognizing and responding to an employee’s mental health issues in the workplace.
An employer’s duty to accommodate
The accommodation process generally begins with an employee asking for assistance. Employers are expected to review requests for accommodation on a case-by-case basis. Specifically, employers must inquire and making reasonable efforts to accommodate any requests for modification to the workplace on the basis of a mental health disability to the point of undue hardship.
While there is no express definition of “undue hardship”, the Code prescribes three (3) considerations when assessing whether an accommodation would cause undue hardship, including:
- Outside sources of funding; and
- Health and safety requirements.
The courts/tribunals have also determined that factors such as inconvenience, morale and/or customer and third-party preferences are not legitimate considerations in assessing the feasibility of an accommodation on the basis of a mental health disability.
Failure to accommodate an employee with a mental health disability to the point of undue hardship may amount to a breach of the Code and may allow an employee to pursue a claim for discrimination, lost wages, general damages and/or reinstatement.
Accommodation and best practices
The law recognizes that individuals with mental health disabilities may need accommodation to equally benefit from and access employment opportunities and therefore, the purpose of accommodation is to assist employees with remaining productive and carrying out their role.
Accordingly, some accommodation strategies employers may wish to consider include:
- Implementing a gradual return to the workplace following an employee’s medical leave;
- Implementing flexible work arrangements, including in relation to hours of work or days worked per week;
- Modifying the employee’s work location/environment, including permitting the employee to work from home;
- Adjusting the employee’s job duties reasonably and as required, including by reducing the tasks assigned and/or providing the employee with re-training opportunities; and/or
- Permitting more frequent breaks, including short breaks every two (2) hours and/or an extended lunch period.
We encourage employers to work together with their employees to determine appropriate accommodation strategies that will promote employee well-being and will lead the employee to be more productive, motivated and engaged.
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