Legal eye: Can you ask staff to take a psych evaluation?

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People with mental health issues suffer greatly under the stigma attached to their illness, which is why up to 60% don’t seek help, as found in a 2012 Substance Abuse and Mental Health Services Administration survey.  A further 50% don’t tell their employers about their struggles.

It’s a sensitive area to manage –but a recent arbitration decision has clarified some of the ways an employer can handle these difficult situations. In Niagara Peninsula Energy Inc. and I.B.E.W. Loc. 636 (Gallardi) the arbitrator said the anti-violence legislation in Bill 168 of the Ontario’s Occupational Health and Safety Act, did not over-ride the requirement for employers to have “reasonable and probable grounds” to require a medical evaluation, whether for physical or mental illnesses.

The case centred on an employee who was asked to get a mental health assessment after three incidents of violence at work. The arbitrator found that in this case the employer did not have the right to make that demand.

“The pre-Bill 168 jurisprudence still applies in that there has to be a balancing of the employer’s right and duty to maintain a safe workplace and the employee’s privacy rights. The test for achieving that balance continues to be the ‘reasonable and probable’ test,” arbitrator Nimal Dissanayake said.

The OHSA changes have increased responsibilities of employers in maintaining a safe work environment, but these responsibilities must continue to be balanced with an employee’s right to privacy. In this case the arbitrator said the employer believed the worker had an anger problem, not a mental illness and therefore did not have reasonable and probable grounds to require the assessment.

However, this indicates that in cases where employers believe a worker has a mental illness, which creates an increased risk to workplace health and safety, they could require an assessment.

“It’s really unclear what evidence you’re going to need to identify reasonable and probably grounds,” said Filion Wakely Thorup Angeletti associate Russell Groves. “It has to be more than just a possibility or  guesswork and it’s a fairly high standard an employer has to reach.”

It offered an employer an option other than terminating the employee in circumstances that fit the requirements.

“You have to draw a strong connection between mental illness and the behaviour,” Groves said. “Rather than terminating or suspending an employee, it offers an employer an alternative to address an issue they believe exists and to return the employee to work in a more healthy state after being cleared by a doctor.”

 

Human Resources Management Canada

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  • Patricia Pitsel on 2012-07-19 2:30:16 AM

    Employers are in no position to be able to diagnose a mental illness, or to distinguish between an "anger management" problem and a mental illness - hence the need for a professional assessment.

    The ndividual privacy rights of people have to be balanced against the safety rights of their colleagues or other sin the work place (customers, clients, etc.)

    What qualifications did the arbitrator have that enabled him/her to make an assessment regarding the mental health of the employee?

  • Harley Grouette on 2012-07-19 9:55:50 PM

    The reasonable and probable standard for decision making is one that the HR Community should embrace as a standard to be considered in all cases such as these and should ensure that any decision in regards to an employee with personal issues is assessed independantly so that the employee is treated with respect and dignity and not with some preconceived position of an HR representative who has little experience in these areas.

  • Anna Thomson on 2012-07-20 6:52:38 AM

    Having worked in mental health support for many years it's virtually impossible for lay-people to assess others' mental health, but reading this I think it comes back to two things: evidence and genuine belief. There is a big difference between mental illness and an anger problem or a self-control issue. Whether the arbitrator is 100% able to decide this, who knows? But they probably took a lot more time and did a lot more research than the employer did before asking for a psych eval.

  • Sharon on 2014-06-16 4:30:36 PM

    Many employers now have a dedicated individual or department handling Disability and/or Wellness issues, and these people are typically in a better position to assess whether or not a professional evaluation is warranted.

    While it's true that most employers are not in a position to determine whether an employee does or does not have a mental health issue, those whose job it is to handle these issues on a regular basis certainly should have some credibility assigned to their opinions. In our organization, we advise our line managers to contact the SME when such issues arise, and the SME will make an appropriate recommendation based on the facts of the situation and the individual's history. This removes the responsbility from the unit managers and places it where it belongs - with a professional who understands the signs, symptoms and behaviours associated with anger management/mental health issues.

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