Getting it Right: Accommodation of Mental Illness Disability in the Workplace

Mar 17, 2015

By Pamela Krauss, Lawyer

Speaking out about the realities of mental illness has been gaining momentum in Canada. Between the Bell Talks campaign and increased media attention on suicide it seems society is trying harder to understand and accept mental illness. Corporations, agencies, non profits and individuals have been working to diminish the stigma associated with mental illness but lots of work remains to be done.  In the background of this flurry of attention the law has been bending and evolving to attempt to protect the psychological well being of people at work. 

In this blog I consider legislation that clearly protects employees with mental health disabilities – the Human Rights Code (Ontario)(“Code”), and in particular, getting the process of accommodating persons in the workplace with mental health disabilities right as it is a requirement under the Code.

Individuals with mental health disabilities are a protected group under the Code.  The Code is designed to ensure protected individuals can access services and employment in Ontario without barriers.  Under the Code employers in Ontario must reasonably accommodate an employee’s physical and mental disabilities to the point of undue hardship.  This means employers must make reasonable and good faith efforts to create a workplace for an employee with disabilities whereby the employee can properly contribute to the workforce and participate in the workplace in a healthy manner.  The accommodation need only be reasonable; it does not necessarily have to be the individual’s preferred accommodation but it needs to address the restrictions.  Failure to accommodate can lead employers to significant liability under the Code including payment for loss of wages and general damages for the hurt to dignity and self respect.

From what I see in my practice its apparent employees and employers are struggling with accommodation of mental illness in the workplace.  Based on my experience it seems the challenges employers and employees encounter with accommodation of mental illness include the following:

  1. getting doctors to clearly articulate the restrictions of cognitive and behavioral impairment so that solutions on how to accommodate the restrictions can be formulated;
  2. treatment of mental health disabilities is usually complex involving ongoing and varying treatments where restrictions and needs of the patient can change and many doctors, counselors and other medical professionals are involved; and
  3. the employee with a mental health disability does not share information due to fear of stigma, denial or privacy expectations.

Rather than effectively working with an employee to accommodate mental illness an employer often instead does one of the following:

  1. terminates the employee for excessive absenteeism or other behavior that would be unacceptable outside of the context of mental health diagnoses;
  2. terminates the employee for being on an unapproved sick leave with insufficient medial information to support the leave (often relying on a disability plan provider’s assessment of the medical information); or
  3. harasses the employee for medical information worsening their condition and destroying the trust in the employment relationship.

It appears failed accommodation is attributed to lack of information, lack of communication, impatience and frustration.  Employers are more accustomed to dealing with physical disabilities and look for the same comprehensive understanding of the diagnosis and restrictions associated with the mental illness.  With mental illness however more often than not the details of the individual’s diagnosis, treatment and restrictions are not easily obtained.  The reality for employees experiencing symptoms of mental illness is that they struggle to get a proper diagnosis and treatment.  In Ontario family physicians often treat mental health directly with limited success, other times they do refer the patient to a psychiatrist, psychologist or counselor. In Ontario the wait times for psychiatrists often exceeds 6 months.  To further exacerbate the challenge is the actual symptoms of the mental illness may prevent an individual from being vigilant in obtaining a proper diagnosis and treatment as their behavior and cognitive abilities are affected.  Then finally, as I have come to learn, after receiving input from a specialist the individual with the debilitating mental illness must undergo months of trials of various psychiatric medications and behavioral therapies before an effective treatment is confirmed.  Often this involves experiences with less than desirable side effects.

So what can an employer do to address and accommodate mental illness in the workplace despite the challenges?  Proactive employers that recognize the need to promote psychological safety in the workplace and accommodate mental illness have begun to develop approaches.  I suggest the following would be helpful:

  1. Educate management on mental illness so they can recognize potential symptoms of mental health disability.
  2. Prohibit management from ignoring the symptoms of mental illness and develop a communication strategy to approach any individual displaying symptoms.
  3. Be reasonable in how much medical information is expected to support restrictions, absences or medical leaves related to mental illness.
  4. Find an alternative communication approach if the individual’s cognitive abilities are impaired – ask the employee for permission to speak directly with doctors, family members or legal counsel to gather quality information if dissatisfied with the information provided.
  5. Develop a mental illness medical form with a list of questions for a doctor that if answered, would help in the accommodation process. 
  6. Develop a performance management procedure for employees with mental health disabilities recognizing their cognitive and emotional limitations.
  7. Be prepared to provide lengthy sick leaves if complete disability is confirmed by a doctor.

Mental health illness will likely impact an employee’s ability to perform in the same manner as a counterpart without such illness, but it does not mean these employees cannot be equal contributors to the employer’s business.  Creatively adapting to the individual’s cognitive and emotional differences could help to engage them as successful employees.  I close by suggesting that rather than seeing accommodation as presenting a challenge it would be great for employers to see it as an opportunity to better engage and work with its work force to provide a dynamic, inclusive and successful workplace. After all, the statistics report that in any given year, 1 in 5 Canadians experiences a mental health or addiction problem.

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