'Legal issues tend to arise when something spirals,' says Eduard Matei
Employers should take proactive measures, even if they are not legally required, to prevent mental health issues from igniting legal liability in the workplace, says employment lawyer Eduard Matei.
According to the Mental Health Commission of Canada, 70 percent of Canadian workers are “concerned about the psychological health and safety of their workplace,” and 14 percent believe their workplace is neither healthy nor safe. The commission predicts mental illness costs the Canadian economy $50 billion annually.
Mental illness personally affects the majority of Canadians, according to numbers from the Centre for Addiction and Mental Health (CAMH). Each year, 20 percent of Canadians experience a mental illness. By the time they reach 40, one-in-two Canadians will have had a mental illness.
“In my experience, legal issues tend to arise when something spirals into becoming a legal issue,” says Matei, in-house counsel at Peninsula Employment Services and a former employment litigator who has dealt with a range of employment law matters, including human rights issues, bullying, and harassment. “It usually means that a number of off-ramps have been missed, either by the employer or by the employee.”
Mental illness impacts a workplace through absenteeism, retention and recruitment challenges, diminished productivity, and a higher risk of workplace accidents, according to Peninsula. The company recommends workplaces develop a mental health policy and cultivate an open and non-judgmental environment where staff feel free to discuss mental health.
“What an employer can do – and, generally, should do – is create a positive environment to stop these issues from ballooning into legal issues in the first place,” says Matei.
Mental health issues are not always visible. However, under each province’s Human Rights legislation, employers have an ongoing duty to accommodate employees. Sometimes, he says, it is challenging to identify mental health concerns until an employee receives medical direction on their limitations, and the employer has a duty to try and meet those limitations.
He says discussing legal options is typically the last resort when an employer has failed to accommodate those limitations or the employee has accused the employer of creating a toxic work environment. While there is no legal requirement to take proactive measures, he adds that they can arrest the issue before it develops into a problem that requires accommodation. These proactive measures could include employee assistance programs and benefits such as counselling and other similar services.
“The first risk in not being proactive is that you create situations where perhaps you allow mental health problems to go unaddressed, and you create an environment where they're more likely to balloon to the surface and need more reactive solutions and accommodation.”
Once there is medical direction for accommodation, employers face the risk of various types of monetary damages, says Matei. They could be on the hook for damages for injury to the employee’s dignity, generalized damages for pain and suffering, as well as back pay and reinstatement.
He recommends that a workplace mental health policy involve a general effort to look for obvious signs of employee mental health issues and then address them. If the signs are clear, the employer has a duty to act and try to limit the employee’s damages that would result.
“The employer can't be willfully blind to a situation if it is obvious that it is an issue.”
“Accessibility is a mindset that generally helps on all fronts, including with respect to mental health,” says Matei. “Having solid accessibility options generally eases poor mental health outcomes, and I find that any workplace that makes a focus on accessibility more often than not correlates with one that treats its employees in a way that accommodates them.”
