On June 14th, 2014, the Ontario Human Rights
Commission ("Commission") issued a new policy entitled,
Policy on preventing discrimination based on Mental Health
disabilities and Addictions ("Policy"). While this policy
is not legally binding on the Human Rights Tribunal
("Tribunal"), or other adjudicative decision-makers, the
Tribunal often takes into consideration the suggestions made by the
Commission in the course of its decisions. For this reason,
it is important for employers to familiarize themselves with this
policy, particularly if it is dealing with issues of accommodating
an employee(s) with a mental disability or addiction.
While the Policy does not provide an exhaustive list of what
constitutes a "mental impairment" or "mental
illness", some of the examples it provides of mental
Alcohol and substance abuse
Statistics published by the Commission indicate that 1 in 5
employees suffer from mental illness. Further, the World Health
Organization has reported that depression and other associated
mental health conditions are the leading cause of disability
worldwide. Despite the fact that mental illness appears to be
one of the leading causes of disability, there is recognition in
the Policy that mental disabilities/disorder and addiction issues
are "invisible disabilities", meaning that employees are
reluctant to disclose the nature of their disability due to fear of
stigmatization in the workforce, or are in denial over the nature
of their disability.
Traditionally, as part of the accommodation process, employees
typically have to advise their employers that they suffer from a
particular disability in order to trigger the accommodation
process. However, under the Policy, the Commission has
reiterated its view that in certain circumstances, an employer will
have to make "meaningful inquiries" if they suspect an
employee is suffering from a mental disability, regardless of
whether the employee has brought their disability to the attention
of their employer. This could be the case where an employee
is demonstrating a dramatic change in behaviour and/or frequent
performance issues are occurring which previously was not the
case. In these circumstances, an employer may have a duty to
inquire further if this information is brought to their
Other important information that is worth highlighting from the
Policy is indicated below:
Detailed sections are included in the Policy regarding the
types of mental disabilities and addictions; stereotypes and
stigmas that exist regarding same; the obligation of an employer to
accommodate to the point of undue hardship; and various ways in
which employers or service-providers can accommodate persons with a
mental disability or addiction;
The Policy recognizes that the Accessibility for Ontarians with
Disabilities Act ("AODA") addresses the right to equal
opportunity for people with disabilities, including mental health
disabilities and addictions, and that employers are required to
comply with the accessibility standards.However, the Policy is
quick to point out that compliance with AODA will not always result
in compliance with the Human Rights Code ("Code").
Of utmost importance to employers is guidance on how to deal
with consent and capacity issues when it is questionable whether an
employee or individual appears to lack capacity to deal with
various decisions. The Policy confirms that in order to respect the
dignity and autonomy of an individual, individuals will be presumed
to have capacity depending on the type of decision-making
involved.Further, it is the Commission's view that the complex
legislative scheme that governs matters related to mental capacity,
which includes the Substitute Decisions Act, the Health Care
Consent Act, and the Mental Health Act are all subject to the Code,
and in the event of a conflict, the Code will prevail.
Based on the foregoing, we recommend that employers conduct a
review of the new Policy, particularly if it is currently dealing
with the challenging issue of how best to accommodate employees who
suffer from these "invisible disabilities". Further,
given that mental disabilities are increasingly on the rise,
employers will inevitably have to deal with accommodating employees
who suffer from mental health or addiction issues, and associated
issues of tracking absenteeism, loss of productivity and
For those employers interested in obtaining further information
about the Policy, it can be accessed via this LINK.
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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