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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