The duty to accommodate and mental illness

According to the Centre for Addiction and Mental Health and the Canadian Mental Health Association, at least 500,000 employees are unable to work due to mental health issues in any given week. This statistic demonstrates the importance of accommodating mental illnesses in the workplace. Nevertheless, Ontario lawyers should let clients know of an employer’s legal obligation to do so.

Federal and provincial laws prohibit discrimination based on a person’s disability, sex, race, creed, family status and age. In Gibbs v. Battlefords & District Co-operative Ltd., the Supreme Court of Canada specified that, in the context of human rights and discrimination, the term “disability” includes mental illness. Depending on the situation, the failure to accommodate an employee’s mental illness may constitute discrimination and give rise to human rights or employment law claims. As such, employers must ensure that they adequately address requests for accommodation in the workplace.

Unfortunately, employers often do not know how to go about developing and implementing strategies to assist those with mental health issues. Unlike physical disabilities, where the accommodation necessary is generally obvious and straightforward, mental health issues may require complex environmental, social and logistical accommodations. For this reason, it is important to understand the status of the law with respect to this issue.

In general, the duty to accommodate is not meant to unfairly cater to employee preferences or be unduly onerous for the employer. It is intended to remove discriminatory barriers up to the point of undue hardship. The question that follows is: What is the point of undue hardship?

To the chagrin of employers and their counsel, there is no set formula for determining what constitutes undue hardship. The court will generally consider the context, health and safety of the employee, the cost to the employer in providing accommodations, collective agreements, workplace policies and procedures, the interchangeability of the employer’s workforce and facilities and the operational requirements of the employer’s workplace. A common thread throughout the case law is that policies and procedures must be amenable to those with mental health issues.

The court has emphasized that employers need to act with empathy. Mental health issues and the way they manifest themselves varies and, as such, the nature of the accommodation will change from person to person. For example, an employer’s policy may mandate that employees be assessed by a company-selected psychiatric expert prior to being accommodated. However, should the employee have legitimate reservations about the company’s assessment policy, it may be appropriate to allow the employee to be assessed by his or her existing psychiatrist.

The basic principle is that following internal policies and procedures to the letter may fall shy of the employer’s duty to accommodate. In other words, though company policies and procedures may be robust, the need to go beyond them in order to accommodate an employee does not necessarily constitute undue hardship. For that reason, each case requires a tailored approach.

The other crucial lesson is that employer-provided insurance policies should not treat those with mental disabilities and those with physical disabilities differently. If, under the employer’s insurance policy, a person with a physical disability is offered extensive rehabilitative services, employees with mental disabilities should be offered a comparable range of services. Similarly, where an insurance policy has a five-year time limit on replacement income for those with physical disabilities, the same time limit should apply to those with mental disabilities. In other words, mental and physical disabilities should be treated equally.

To summarize, employers’ insurance benefits must treat disabilities equally, and their workplace policies and procedures must be flexible and adaptable to those suffering from a mental disability. The employer must engage in creative problem solving when asked to accommodate a mental health issue. With that being said, the court has offered employers some protections.

For starters, the presence of a mental illness must be substantiated by expert medical evidence. When an employee is claiming that they were wrongfully dismissed due to a mental disability, there must also be a connection between the disability and the employee’s poor performance. If there is no connection, the employer’s decision to dismiss the employee cannot be barred by an employee’s claim of discrimination. Furthermore, the presence of a mental disability cannot be used to justify disciplinable conduct where the employee’s actions are premeditated. Further, if an employee has a treatment plan and fails to follow it as prescribed, their claim may be dismissed.

With respect to the accommodations being offered, if it is necessary to provide the employee with a part-time work schedule, the employer is permitted to reduce the employee’s salary accordingly. Finally, if a genuine job requirement results in the discriminatory treatment of an employee with a mental illness and the employee’s inability to meet the job requirement cannot be reasonably accommodated, the discrimination will be justified and permitted. For example, when attendance at the workplace is a critical component of the job, the employer may have an internal policy regarding innocent absenteeism. If the employee is chronically absent due to their mental illness and there are no suitable alternative positions or work arrangements within the company, dismissal for excessive absenteeism arising from a mental disability may be justified. The facts of the case will need to be considered.

In conclusion, an employer is entitled to a productive employee and the employee is equally entitled to an empathetic and flexible employer.

Tanya Walker is a Toronto litigation lawyer at Walker Law PC and a bencher of the Law Society of Ontario. Jordan Routliff, articling student, contributed to this column.