There is growing understanding of the need to accommodate mental
health issues in the workplace, not only due to human rights
obligations but also to optimize employee productivity. However,
the boundaries of employers' obligations from a human rights
perspective are not always clear. This article focuses on
stress-related accommodation requests: is an employer obliged to
accommodate an employee having difficulty coping with stress? While
the answer is generally no, recent exceptions to this rule in the
case law confirm the importance of treating stress-related
accommodation requests seriously.
Does Stress Trigger a Duty to Accommodate?
Human rights legislation in the Atlantic Provinces provides no
explicit protection for "stress". However, physical and
mental disabilities are prohibited grounds of discrimination which
trigger an employer's duty to accommodate. The critical
question, then, is whether and when "stress" constitutes
a disability so as to require accommodation.
The case law confirms that if stress (and related symptoms such as
anxiety, insomnia, etc) reach a degree of severity and
permanence so as to interfere with the employee's
ability to function at work or to perform certain job duties, it
can be characterized as a disability requiring accommodation.
However, limits are imposed to make this characterization the
exception rather than the rule. The bare assertion that stress is
affecting one's ability to function at work is not sufficient.
Similarly, an employee with an aversion to specific job tasks, even
if strong enough to negatively affect his or her health, is not
enough to constitute a disability. Rather, clear medical
documentation demonstrating that the employee is physically and/or
psychologically unable to perform some or all work-related tasks
will almost always be needed before he or she is entitled to
accommodation for stress-related symptoms.
The following tips can help manage employee requests for
accommodation of stress-related illnesses:
accommodation requests seriously and with sensitivity: Be
conscious of skepticism and stigma associated with stress-related
illnesses. Stress-related requests for accommodation should not be
dismissed off-hand. Normal procedures should be followed (request
for medical documentation, etc) to ensure each request is
considered on its own merits.
Be attentive to signals an
employee is having difficulty coping with stress: Changes
in employee performance, impatience, irritability, heightened
interpersonal conflict, attendance problems, frequent reports of
headaches, indigestion, fatigue, insomnia or non-specific illness,
or an employee dropping hints about stress levels, should not be
ignored. While employers are not required to diagnose employee
health problems, a failure to investigate obvious signs of
stress-related illness, particularly prior to disciplining an
employee, could result in a human rights complaint.
documentation: As with any request for accommodation, the
employer must understand the nature of the employee's
limitations. In stress-related cases, medical evidence is essential
to establish that stress-related symptoms reach the threshold of a
Consider preliminary motions
to dismiss a human rights complaint: Despite recognition
that stress can, in some instances, constitute a disability, such
instances remain the exception rather than the rule. If faced with
a human rights complaint for failure to accommodate stress,
consider whether there is any medical evidence supporting the
inability to perform job tasks due to stress-related symptoms. If
not, it may be appropriate to seek early dismissal of the complaint
on the grounds that it cannot succeed.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).