In recent years, there has been an effort to increase the understanding and visibility of mental illness and the disabilities it can cause. However, because of the personal nature of the illness, employers can find it difficult to recognize that an employee is ill and then recognize the duty to accommodate the mental illness in the workplace.
As a result of the COVID-19 pandemic, there is a significant and well-documented increase in mental health issues affecting employees arising out of job insecurity, safety, family health, and child care concerns, and the disruption to personal and work lives. Mental health issues have further increased during the gradual return to work since many employees are concerned about COVID-19 at their workplace, particularly for high-risk work environments and occupations.
The Human Rights Code of British Columbia prohibits discrimination based on personal characteristics of an employee or prospective employee. These protected characteristics include, age, ancestry and colour, criminal conviction, family status and marital status, gender identity and expression, sex and sexual orientation, religion and mental disability.
But what exactly constitutes a mental disability? A mental disability includes mental conditions that affect or are seen to affect a person's abilities; these include a developmental disability, learning disorder, mental illness such as depression, post-traumatic stress disorder or bipolar disorder, alcohol and substance abuse, and some anxiety and stress disorders. Moreover, a mental issue may constitute a mental disability in human rights law if the following conditions are met:
- The mental condition prevents the employee from performing significant functions that can be performed by others;
- The mental condition is ongoing; and
- The mental condition is beyond the employee's control.
The above illustrates that to effectively manage its workforce an employer must create a workplace that focuses on health and a safe work environment that supports an employee's mental well being. In order to do so, an employer must be knowledgeable about mental health and the signs of mental illness.
For example, an employee who after years of reliable service becomes unpredictable, unreliable, or confrontational could be indicative of the employee struggling with their mental health. The difficulty in assessing such situations is without directly inquiring about the employee's mental health the employer may treat the employee's conduct as a disciplinary matter. This could be a mistake. An employer can and in some instances has a duty to inquire about the status of an employee's mental health if there is reason to believe the employee is suffering from illness.
Once the employer is aware that the employee is struggling with their mental health, there is an expectation that employers will make reasonable efforts to assist the employee in the workplace which is often referred to as a duty to accommodate. The employer's duty to accommodate may be onerous, require some hardship, and creativity. Many factors contribute to quantifying the level of hardship, including:
- The financial cost relative to the employer's size;
- Disruption of a collective agreement;
- Problems of morale of other employees;
- The interchangeability of the workforce;
- The adaptation of facilities; and,
- The magnitude of any safety risks and the identity of those who bear them.
However, what is consistent is that an employer has to be diligent, reasonable and genuine in finding a solution with an employee who is mentally ill versus making unilateral decisions that could negatively impact the employee in the workplace.
About Mackrell International – Canada - Lindsay Kenney LLP is a full service business law firm with offices in Vancouver and Langley, BC and a member of Mackrell International. Mackrell International – Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.
This article is intended to be an overview and is for informational purposes only.
