Health and Safety
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By Malcolm MacKillop and Hendrik Nieuwland

Mental health is an ever-increasing problem in the Canadian workforce. With the protections provided to employees, through both privacy and human rights legislation, many employers are reluctant to inquire into the personal circumstances of an employee, as they are unsure of their legal right to do so.

Thus, many employers are oblivious to organizational challenges caused, in some part, by an employee’s state of mind. In cases of mental health, however, employers may have a legal duty to make inquiries.

The term “mental illness” encompasses a wide range of conditions that can affect an individual’s overall mood, thinking and behaviour. Two of the most common forms of mental illness are depression and anxiety disorders.

According to 2012 figures from Statistics Canada, 4.7 per cent of Canadians aged 15 and older stated they had experienced a major depressive episode in their lives and 2.6 per cent of Canadians aged 15 and older reported symptoms consistent with an anxiety disorder. In addition, 17 per cent of Canadians aged 15 and older believed they had a need for mental health care in the past year of their lives.

Mental illness is often perceived to be qualitatively different from physical illnesses, such as heart disease or cancer. Those who suffer from mental illness are sometimes viewed as unproductive, non-contributing members of society. As a result, many of those who suffer from mental illness do not believe it’s in their best interest to discuss mental health with their employer.

However, employees with mental illness can make positive contributions to a workplace. Whether an employer is aware or not, they likely employ an individual who suffers from mental illness, based on the statistics above. While those suffering from mental illness may have daily struggles, this does not negate their positive contribution to a workplace.

However, daily struggles can and often do present themselves within a work environment. Employees suffering with mental illness can oftentimes exhibit behaviour costly to an employer, such as absenteeism, low morale and strained workplace relationships. These types of behaviour may affect an employee’s – and ultimately, an employer’s – overall productivity. In fact, according to a December 2011 report titled “The Life and Economic Impact of Major Mental Illnesses in Canada” by the Mental Health Commission of Canada, the economic impact of mental illness on Canadian workplaces was estimated at $6.3 billion annually.

In order for a mentally ill employee to reach their full potential, effective management may be required. There are myriad ways that an employer can offer assistance to a mentally ill employee, says the Ontario Human Rights Commission. Depending on one’s needs, effective management may include modified job duties; encouraging the use of an employee assistance plan (EAP); providing alternative supervision arrangements; providing alternative ways to communicate with the employee; providing job coaching; allowing a flexible work schedule; allowing for more training or training that is delivered in a different way; and allowing short-term and long-term disability leave.

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.

Malcolm MacKillop and Hendrik Nieuwland practice employment law with the firm Shields O’Donnell MacKillop LLP of Toronto.

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