Despite initiatives like #BellLetsTalk, some employers may still view employees with mental health as a liability to their business. Some other employers may not know their obligations towards employees with mental health. This blog describes what employers and employees need to know when it comes to mental health in the workplace.
First, the Ontario Human Rights Code prohibits discrimination in employment, including mental disability. The Human Rights Code defines disability, including:
a condition of mental impairment or a developmental disability;
a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language; or
a mental disorder.
These definitions are not exhaustive. The Human Rights Commission recommends a “social approach” to disability, or the “social model” of disability. This takes into account evolving biomedical, social and technological developments, and emphasizes human dignity, respect and the right to equality.
Mental disabilities that have been identified under the Human Rights Code include anxiety, generalized anxiety disorder, depression, stress, substance abuse, substance addiction, adult attention deficit disorder (ADHD), and bipolar disorder.
What must an employer do when an employee discloses they have a mental disability? Under the Human Rights Code, an employer must accommodate the employee to the point of undue hardship. Accommodation can include time away from work like a stress leave, sick leave, modified duties, light duties, part time work, or even a temporary change in duties. Undue hardship will be established when the cost of accommodation is too high, or there is a health and safety issue with the accommodation.
Why should an employer accommodate an employee? Legally speaking, a failure to accommodate will mean a breach of the Human Rights Code and a finding of discrimination. This leads to an employer being ordered to pay an employee for discrimination. Accommodation can also empower a workforce, where an employer can demonstrate to its employees that it is willing to accommodate individuals and have a healthy work environment – both powerful motivators. For many employees with mental health disabilities, they only require slight accommodation to perform at a high level. Accommodation can also be temporary. It will usually not be very onerous for an employer to provide the right accommodation such that they have a productive workforce.
Finally, the Human Rights Code prohibits an employer from terminating an employee due to disability. This would also be discrimination and a breach of the Human Rights Code. An employer cannot simply just provide an employee with severance if one of the reasons for termination was the employee’s disability. Intention to discriminate is not necessary. The disability also does not have to be the only reason for termination for a finding that the termination was discriminatory.
For employees with mental health disabilities and who require accommodation, they should disclose to their employer that they require accommodation. They do not always have to disclose their diagnosis. The protection of the Human Rights Code is usually only triggered when the employee discloses they require accommodation for a disability.
If you are an employer or employee that has questions regarding managing disabilities in the workplace, contact Toronto Employment Lawyer Jason Wong to book a consultation to know your rights.