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
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
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
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
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.
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