Human Rights Code is a quasi-constitutional piece of legislation, essentially meaning it has priority over Bill 168, Orth said. So if you’re juggling the two, it’s better to err on the side of the Code. Discuss the problem with the perpetrator and try to find ways of managing the situation and the behaviour – just as you would if the perpetrator wasn’t suffering from a mental illness. If they don’t improve, it may be a case where undue hardship is applicable.
“I would be of the opinion that the law would uphold an eventual point of undue hardship where an employer has got to deal with the same issue over and over when they’re trying to accommodate that employee’s mental health issue. And that’s not to say that mental health is an excuse in every instance of harassment,” Orth said.
And finally, don’t forget that accommodation has two aspects: procedural and substantive. If you don’t undertake a process, then even if you came to the right conclusion, you’ve failed in your duty to accommodate. The process doesn’t have to be the same for every company or even every situation, but you need to have a set of steps in place for managing accommodation.
Key things to keep in mind:
Perfection is not a requirement
Employees who requests accommodation often have a specific scenario in mind, but the employer is not obligated to do exactly as requested, or to provide perfect accommodation.
“The duty on the employer is to provide reasonable accommodation, which is up to the employer to assess,” Orth said. “As long as it meets whatever restrictions the employee has then the employer is free to do whatever they feel is best for the employer.”
You can still behaviour manage accommodated individuals
“You can still get into that discussion with the employee who is the perpetrator of the harassment, and I think you can still get to an undue hardship point if that behaviour continues and it is something that is drastically impeding the business and day to day operations,” Orth said. “Make sure you’re talking to the accommodated employee, telling them ‘This is really disruptive and we can’t have it keep happening. What can we do about it?’”
Each situation is different
There are no “one size fits all” solutions so it’s key to get as much information as possible about each individual situation. The employee must provide you with all the information you require to accommodate so don’t be afraid to ask for more details. In general the rule is "prognosis not diagnosis" so while you can't demand details of what they've been diagnosed with, you can request detailed information about what they can and cannot do.
Orth emphasises having a process in place, following the process and documenting every step – it will all help if your organization does end up before the Human Rights Tribunal or the courts. If the individual’s behaviour is affecting productivity or the bottom line, record that as well. It will be easier to prove “undue hardship” if that becomes necessary.
Legal Eye: employers entitled to some mental health info in disability claims
Legal eye: Can you ask staff to take a psych evaluation?
Suspiciously sick: when you can and can't ask for more information
Medical certificates: privacy versus policy
Doctor details: what medical information is HR entitled to?