The Ontario Human Rights Commission (the "OHRC") has recently published a report on people with mental health and addiction disabilities in the province. The report examines many different obstacles faced by such individuals but the section of the report dealing with the labour force is of particular note to Ontario employers. First, many readers may be surprised by the prevalence of mental health and addiction disabilities in the workforce. The report states that approximately 5% of Ontarians over the age of 15 currently identify themselves as having a mental health or addiction-based disability. The report also notes that a staggering 90.5% of all individuals who have mental health or addiction disabilities also have another, concurrent form of disability. The presence of multiple, overlapping disabilities certainly adds complexity to the accommodation process.
In addition, the report finds that people with mental health and addiction disabilities are disproportionately underemployed compared to the rest of the population and even compared to people who have other types of disabilities. When employed, persons with mental health and addiction issues report experiencing high levels of harassment and discrimination. 67.7% of those surveyed reported feeling disadvantaged at work, stating that they had been refused interviews, refused promotions or otherwise treated poorly because of their disability.
Most notably, the OHRC found that 1/3 of employees who identify as having addiction or mental health disabilities do not plan to tell their employers about their health issues and do not plan to request any accommodation. In light of this fact, employers should be mindful of case law that requires them to proactively investigate whether or not an employee's unusual behaviour is indicative of a mental disorder. For example, in a 2010 decision of the Federal Court of Canada, the Court considered whether or not the Canadian Human Rights Commission had erred in declining to deal with a complaint from a former employee of the Department of Foreign Affairs and International Trade ("DFAIT"), Mr. Dupuis, who alleged that DFAIT had discriminated against him when it accepted his notice of resignation. Mr. Dupuis alleged that he was experiencing a mental disorder at the time that he resigned and that DFAIT should have refused his resignation and directed him to seek medical attention. The Court held that it was unreasonable for the Commission to decline to deal with the complaint. The Court held that DFAIT ought to have known that something was amiss because Dupuis had recently purchased a home and was being considered for a permanent appointment within DFAIT. Resigning at that juncture was clearly "irrational" and merited further inquiry before DFAIT accepted his resignation. (Dupuis v. Canada 2010 FC 511)
Cases like Dupuis illustrate the challenges faced by employers with employees who have undisclosed mental health issues. Most employers would prefer to respect the privacy and autonomy of their employees and refrain from prying into what is obviously a very personal sphere. For more on this thorny issue, you can . The Cassels Brock employment group will also be discussing mental health, accommodation and absenteeism at its fall breakfast seminar on October 7, 2015. For more details on the seminar, please click here.
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