In mid-June, the Ontario Human Rights Commission released a new
policy entitled "The Policy on Preventing Discrimination Based
on Mental Health Disabilities and Addictions" (the
"Disability Policy"), which builds on the
Commission's prior Policy and Guidelines on Disability and the
Duty to Accommodate.
The Disability Policy covers some of the following areas:
recognizing mental health disabilities and addictions, establishing
discrimination, forms of discrimination, reprisal, the duty to
accommodate, undue hardship, and preventing and responding to
discrimination (including the development of policies, education
and training). Although the Disability Policy covers protection
from discrimination in the course of employment, it also applies to
protection from discrimination in relation to goods, services,
accommodation and housing.
Particularly important for employers to note is the
Commission's statement that when employees request
accommodation due to disability, the employer is not generally to
"second guess" the health status of an employee. That
presumption can be overruled in a situation where there is a
legitimate reason to question the employee; however the general
rule is for the employer to take the request in good faith without
seeking additional medical documentation. In the words of the
Commission, "Where more information about a person's
disability is needed, the information requested must be the least
intrusive of the person's privacy while still giving the
accommodation provider enough information to make the
Similarly, an organization must not ask for more confidential
medical information than necessary because it doubts the
person's disclosure of his/her disability based on its own
impressionistic view of what a mental health disability or
addiction disability should "look like".
As also stated in the Disability Policy, "In the rare case
where an accommodation provider can show that it legitimately needs
more information about the person's disability to make the
accommodation, it could ask for the nature of the person's
illness, condition, or disability, as opposed to a medical
While the Disability Policy does not set out new law, it is a
helpful summary of the current state of the law with respect to
discrimination due to disability and the duty to accommodate, and
it should be reviewed by employers dealing with mental health
disabilities (including addictions) in the workplace. One note of
caution, however: this is an evolving area of law, and the
Disability Policy, like all policies of the Commission, do not have
the force of law; they merely set out the Commission's
interpretation of the law as of the date the Policy is posted.
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