Legal Eye: employers entitled to some mental health info in disability claims

Legal Eye: employers entitled to some mental health info in disability claims

The disconnect between how workers feel about discussing physical illness, compared with disclosing mental illness information, was reinforced in an Ontario case this week.

The position of a  Niagara casino was backed by an arbitration panel which found that the employer was entitled to information about their employee’s mental health, just as they were entitled to information about physical health.

The case centred around a security worker who was on disability leave for a physical illness and subsequently  developed a mental illness. When she returned to work, the employer sent her home because of concerns around her fitness and ability to work. Despite being familiar and comfortable with the process for disability leave, the worker did not want to give any information about her mental health to her employers.

In an unusual twist, the union and employer had made grievances against each other, with the union claiming discrimination and harassment. The employer claimed the employee and union had not met their obligations in working to a modified work plan and did not provide necessary information.

“Employment accommodation can’t even begin unless the employer has some information about the nature of a disability,” Filion Wakely Thorup Angeletti associate Paula Pettit said, adding that that was “slightly at odds” with Human Rights Commission policy. “The panel noted that the employer has to have some information about the nature of the disability and that is particularly true in cases of mental illness. There are a range of different kinds and manifestations that can raise legitimate workplace safety issues,” Pettit said.

The panel also touched on the recent Jones vs Tsinge case, which set up a new privacy tort. The report said the precedent set in that case did not mean that “asking for or even demanding that an employee disclose confidential medical information for a legitimate purpose constitutes an improper or actionable intrusion on the employee’s right to privacy”.

“When a bargaining unit employee claims she has a disability and seeks accommodation, with or without a break in active employment, the onus is on the employee to establish the nature and extent of the disability and consequent restrictions, and the accommodations required,” it continued.

Unfortunately the stigma associated with mental illness could add to employees’ concerns about disclosing information, Pettit said.

Employers could follow the general advice to send a letter with specific questions to workers affected by mental illness, with a copy for them to give to their doctor. However, the questions should be tailored to each individual situation, rather than a “one size fits all” approach.