legal words
There are many ways to accommodate
an employee with a mental illness
and employers need to work closely with
employees to determine the appropriate
approach. Although the number of solutions
vary, relationship building is vital
in every case. Employers would be wise
to limit the number of managers or human
resources professionals an employee
engages with. The use of fewer points
of contact should foster the building of
long-lasting relationships. In addition,
employers should be aware that employee
medical information is highly sensitive.
Employers should treat such information
as confidential and ensure that it is shared
only with those the employee has agreed
may have access to the information.
Pursuant to the Ontario Human Rights
Code, employers have a duty to accommodate
employees to the point of undue
hardship. Undue hardship can include
substantial costs to the employer, such that
the costs would alter the essential nature
of the enterprise, or substantially affect
its viability. In addition, health and safety
considerations can factor into undue hardship,
where the accommodation is likely to
cause significant risks to others impacted
by the accommodation measures. Factors
such as business inconvenience and employee
morale are not valid considerations
in assessing undue hardship. Where accommodation
causes undue hardship, the
employer is required to find the next-best
solution.
However, in considering undue hardship,
there is by no means a limitless right
to accommodation. Circumstances can
arise where it may not be possible to accommodate
mental health restrictions.
A situation where the duty to accommodate
may be limited arises where the
employee refuses to participate in the accommodation
process. Employers should
keep in mind that mental illness can affect
an individual’s decision-making. Even
if an employee initially refuses accommodation,
employers should still attempt to
work through the process, as appropriate.
Having said that, there will be a limit on
the extent to which an employer can accommodate
an employee who refuses to
participate.
If managed properly, employees suffering
from mental illness can be a valuable
part of a team. Even though accommodating
an employee who suffers from anxiety,
depression or other mental illness may be
a challenge, it is a legal requirement. Most
likely, an employer will need to approach
the situation with a softer touch rather
than an aggressive management style.
Though the duty to accommodate is a
legal requirement under the Code, accommodating
employees with mental illness
may have additional benefits as well. For
example, appropriate accommodation
may lead to increased productivity, reduced
costs in some cases and increases in
employee satisfaction. Accordingly, with
appropriate accommodations and effective
management, employees with mental
health disabilities can more effectively
contribute to the workplace. n
Malcolm MacKillop and Hendrik
Nieuwland practice employment law with
the firm Shields O’Donnell MacKillop LLP
of Toronto.
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20 ❚ FEBRUARY 2016 ❚ HR PROFESSIONAL