Last week a Germanwings flight from Barcelona to Dusseldorf crashed in the French Alps. Prosecutors released shocking evidence from the cockpit voice recorder which suggests that the co-pilot intentionally crashed the plane. Information has since surfaced about the mental health of the co-pilot. Torn-up sick notes indicating that he might not be fit to fly, including one for the day of the crash, have been found in the co-pilot's possessions. While there is much speculation, it is not known whether the co-pilot was experiencing a mental illness on the day of the crash.
The media attention on Germanwings in the aftermath of this tragic incident should cause employers to reflect on their workplaces and ask the following questions: What risks could undiagnosed or unidentified mental illnesses pose in our workplace? What steps should we, as an employer (or service provider), take in the management of our workforce to reduce the risk of harm? What are our legal obligations with respect to employees with mental illness?
Create a Respectful Workplace Environment & Provide Leadership Training
The co-pilot responsible for the Germanwings crash may have hidden important medical information from his employer. His decision not to share medical information reminds us of the social stigma regarding mental health issues and the reluctance of employees to divulge vital information. Employees are more likely to be open with employers about a mental health issue if they feel the employer will be supportive. It could be argued that a culture that does not encourage employees to obtain assistance for a medical issue creates a workplace safety risk.
The following initiatives can be taken by an employer to create a better culture of respect for mental health issues:
- Ensure that there is a policy which outlines a confidential process for employees who want to provide the employer with medical information, including information about mental health issues.
- Demonstrate to employees that there is executive support for mental health initiatives and accommodations (perhaps appoint a senior-level champion).
- Establish or expand an employee assistance program or provide employees with access to helpful resources.
Employers might consider training managerial and supervisory personnel to recognize and address mental health issues by discussing:
- Acceptable dialogue and messaging in the workplace regarding mental health.
- Possible signs of mental health issues and the requirement to consider this as a potential explanation for uncharacteristic or inappropriate behaviour. The training should specify that the information regarding a suspected mental health issue is to be provided to human resources and kept confidential.
- The employer's internal procedures for addressing suspected mental health issues, as well as the accommodation process specific to mental disabilities.
Safety-Sensitive Workplaces: Policies and Employee Training
Since 9/11, the focus of flight safety has been to ensure that the cockpit is not readily accessible to passengers who intend to hijack the plane. There has been much less public review of the risk posed by the pilots responsible for flying the plane. In the days following the Germanwings crash, many airlines, including Air Canada, changed their workplace policies to require two people to be in the cockpit of the airplane at all times. The key point for employers that operate in transportation or safety-sensitive environments is that from the perspective of occupational health and safety, it is important to consider the consequences of an employee experiencing an acute health issue while on the job.
The Ontario Occupational Health and Safety Act requires all employees to receive health and safety awareness training. Generally, in high risk or safety sensitive environments, employees receive additional job-specific safety training from their employer. Employee training should include practical discussions of what an employee must do if he/she experiences symptoms that affect judgment, such as anxiety, panic, confusion or fatigue, and how other employees are expected to react. Where appropriate, employers should conduct a risk assessment and develop policies and procedures that address those potential risks. Any conversations regarding mental health must clearly demonstrate that the employer will be supportive of employees who seek assistance in those situations.
Scope of the Duty to Accommodate: Mental Illness
While it is generally the employee who is responsible for initiating discussions about required accommodation, the duty to accommodate can also arise where the employer knew or ought reasonably to have known that the employee had a disability. This positive duty may be surprising to many. In 2014, the Ontario Human Rights Commission released a policy which states that employers "must attempt to help a person who is clearly unwell or perceived to have a mental health disability or addiction by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation". This suggests that employers must be prepared to identify when an employee is displaying uncharacteristic or concerning behaviour that may be attributable to a mental health issue. Once identified as a potential issue, the employer has an obligation to proactively address the situation. We of course do not know the specifics of the Germanwings case, but under Ontario law at least, if the employee was acting strangely, the employer would have had a positive obligation to discuss the issue with the employee and to offer accommodation.
The invisible and varied symptoms of mental health issues may make it difficult for an employer to determine whether the duty to accommodate has been triggered. This is particularly the case where the psychosocial nature of the symptoms leaves the employee unaware that he or she is experiencing a mental illness or that he or she has accommodation needs. In practice, employers must consider whether an employee's uncharacteristic behaviour is an indicator of a mental health issue, particularly in circumstances where the employee may be disciplined for the behaviour, or as in the case of Germanwings, where there are safety implications.
Workplace laws require employers to take necessary precautions to ensure the safety and well-being of their employees. If you have any questions regarding your obligations or any of the information discussed above, please contact Tim Lawson, Sunil Kapur or your usual contacts at McCarthy Tétrault for assistance.
1. National Post, accessible at: http://www.nationalpost.com/m/wp/blog.html?b=news.nationalpost.com/2015/03/26/air-canada-to-require-two-people-in-cockpit-after-revelations-about-germanwings-co-pilot.
2. Occupational Health and Safety Act, R.S.O. 1990, c. O.1.
3. Ontario Human Rights Commission (June 18, 2014), Policy on Preventing Discrimination based on Mental Health Disabilities and Addictions, retrieved from: http://www.ohrc.on.ca/en/book/export/html/11238 ("Policy on Mental Health Disabilities").
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