The Ontario Human Rights Commission has released a new policy titled the "Policy on preventing discrimination based on mental health disabilities and addictions." The policy is designed to call attention to the various forms of discrimination, stigma and adverse treatment experienced by individuals with mental health disabilities or addictions in employment, social services and housing.

For employers, the policy is not a law but rather a tool that reiterates key principles of the duty to accommodate employees to the point of undue hardship. The policy's main emphasis is that for the purposes of discrimination laws, mental health disabilities are treated no differently than physical disabilities. To this end, the policy reiterates the following well-known legal principles:

  • Your accommodation of a disabled employee must be guided by the principles of respect for dignity, individualization and integration and full participation.
  • The duty to accommodate has two steps: substantive (the actual accommodation offered) and procedural (how you assessed and arrived at the accommodation option), and that failure of either step is a breach of the Human Rights Code. A blanket corporate accommodation policy will not be sufficient to meet the duty to accommodate, as each case must be assessed on an individual basis.
  • Accommodations may need to be reviewed and revised over time to ensure they continue to meet the individual's needs.
  • Depending on the disability, an employee may not be in a position to ask for accommodations and you may need to make sensitive inquiries if you observe unusual behaviours or other employees bring the issue to your attention.
  • The employee must be an active participant in the accommodation process, and is not entitled to their preferred accommodation, but rather appropriate accommodation.

The policy also provides guidance on the concept of undue hardship. The term "undue hardship" necessarily means that employers are expected to endure some degree of hardship, and that undue hardship must be real and quantifiable - not hypothetical. The Human Rights Code considers the following factors when determining hardship: cost (which must not be so substantial as to alter the essential nature of the enterprise or substantially affect its viability); outside sources of funding (such as government funding); and health and safety requirements (if the accommodation is likely to cause significant health and safety risks). Factors such as business inconvenience, employee morale and third-party preferences (such as customer requirements) are generally not considered valid considerations in determining undue hardship.

The policy is essentially a guideline for employers on how to address mental health disabilities and addictions. While not legally binding, the policy is a good tool for you to understand how the Human Rights Tribunal may review your accommodations measures.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.