Mental illness costs Canada $52 billion a year and is the fastest growing area of disability claims, but 64 per cent of Canadian businesses have no structure to support employees’ return to work from mental health leave. Lorenzo Lisi
looks at best practices to help organizations meet both their legal obligations and workforce needs
Canadian employers have long understood the importance and priority of accommodating employee disabilities, not only to comply with the law and avoid liability, but also to ensure a flexible and productive workplace that addresses the differing needs of its employees.
Historically, the emphasis has been on the accommodation of physical disabilities based on assessment of physical capacities. In the last few years, however, Canadian workplaces have seen a dramatic increase in the instances of requests for accommodation on the basis of an employee’s mental or psychological disability.
From an employer’s perspective, this triggers an identical accommodation obligation, despite the fact that the illness itself can be based on subjective symptoms, or is not disclosed by the employee until much later, usually after discipline/termination for specific conduct.
This area of accommodation is fraught with uncertainty and is now the subject of litigation, which will further define the obligations of employers. Managing this duty to accommodate and avoiding liability is a significant challenge, which requires foresight, patience and access to appropriate medical information.
THE DUTY TO ACCOMMODATE
Despite the often “invisible” nature of a mental disability, an employer’s obligation to accommodate is identical to that where there is a physical disability: specifically, to the point of undue hardship. The case law has been clear that assessing this obligation is a multi-party inquiry, which requires input from the employer, the employee and any third party involved with the accommodation process, such as a union.
Mental illness does not always manifest in visible symptoms, but employers still may have an obligation to inquire whether the employee has a disability. Difficulties often arise where there is conduct that would normally merit either discipline or discharge, which is alleged to be the result of a mental disability.The trick is determining whether there is a “causal connection” between the disability and the misconduct.
ESTABLISHING THE “LINK”
Based on recent arbitration and court decisions, the determination of whether there is a sufficient connection between the misconduct and disability is increasingly being made based on medical reports and advice. For example, in a ruling under the Canada Labour Code, an employee’s claim that his attendance at work while under the influence was causally connected to his alcoholism was dismissed in large part due to the fact that he failed to provide medical evidence to substantiate this claim.1
WHAT SHOULD THE EMPLOYER KNOW?
In Krieger v. Toronto Police Services Board
, the Human Rights Tribunal of Ontario (the “Tribunal”) held that the police service discriminated against a constable by suspending him for his overreaction to a situation involving a customer at a fast-food restaurant. The Tribunal held that the Police Services Board should have known, based on the constable’s behaviours leading up the incident, that the constable was suffering from post-traumatic stress disorder with respect to his involvement in a dispute with an armed suspect several months prior.2
The thrust of this decision is a warning to employers: there can be a duty to accommodate even in the absence of an employee actually articulating their need for accommodation.
The cost of getting this assessment wrong can be considerable. In the recent ruling in Fair v. Hamilton- Wentworth District School Board
(“Fair”), the Tribunal significantly altered the landscape for damages arising from mental health based claims.3 In this case, a school board supervisor alleged that her disability was the result of her highly-stressful job, overseeing the removal of asbestos. The applicant alleged that she feared that she could be held personally liable if she made a mistake. After going off of work and receiving disability benefits for approximately one year, the school board did not return the applicant to work.
After a lengthy hearing, and some truly terrible facts with respect to the approach taken by the school board, the Tribunal held that the school board failed to accommodate the employee’s mental illness by not “actively, promptly and diligently” exploring accommodation options. As a result, the Tribunal awarded the applicant over $450,000.00 in damages and surprisingly ordered reinstatement, nearly 8.5 years after the employee was terminated.
Employers are right to be concerned about the ever-growing damage awards. It is part of the job of HR professionals to identify and manage these kinds of liabilities. But there is no reason to panic. Courts, arbitrators and human rights tribunals are assessing on a daily basis all kinds of claims relating to disability. Mental health is the most recent, and does not change the law of accommodation, or the obligations on employers, but only adjusts the approach.
What this means is that employers must continue to utilize all of the tools and techniques normally associated with their obligation to accommodate their employees.
1 Air Canada v. Canadian Union of Public Employees (Airline Division) (Young Grievance),  CLAD No. 472.
2 Kreiger v. Toronto Police Services Board, 2010 HRTO 1361.
3 Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440.
Lorenzo Lisi" src="https://ca.res.keymedia.com/files/image/LorenzoLisi.jpg" style="width: 80px; height: 87px; border-width: 3px; border-style: solid; margin: 3px; float: left;" />Lorenzo Lisi is a partner and member of the litigation group and the labour and employment team at Aird & Berlis LLP. firstname.lastname@example.org
This feature is from HRD Canada's September issue. Download the issue to read more.
Getting timely, practical legal advice is always a good thing, but here are some best-practice tips which may help in navigating these often difficult waters.
- HR professionals are not doctors. They do not need to diagnose mental health problems. However, employers should watch for patterns and consider whether an employees’ uncharacteristic behaviour is an indication of a mental health problem.
- Do not impose discipline or terminate an employee without taking time to carefully assess whether the misconduct at issue bears nexus to a mental health issue.
- Where HR professionals suspect that an employee has a mental health issue, they should meet with the employee privately, identify concerns, ask if accommodation is required and, of course, document the meeting in writing.
- Accommodation is a multi-party inquiry. If there is a union at the workplace, involve them in the accommodation process as there may be considerations impacting the collective agreement, or other employees. If not, insist the employee actively participate in the process by providing clear, timely medical information to ensure an appropriate accommodation can be considered.
- In response to an employee’s request for accommodation or return to work, HR professionals should consider requesting a medical note from the employee’s medical specialist, rather than the employee’s family physician. In certain circumstances, employers may also want to consider getting an independent third party medical.
- Don’t be bullied! Employers have the right to receive appropriate and proper information in order to comply with the obligation to accommodate. Accommodation doesn’t always mean complying with the exact request of the employee, whether it be in relation to available duties or positions. The process must review available work/positions based on established restrictions. This doesn’t mean simply making work or bumping another employee!
- Be clear. Be concise. Be vigilant in following up. The longer an employee is left “out there” on disability, or absent without leave, the harder it will be to assess accommodation or impose discipline.