Employers often face unique challenges when dealing with employees who suffer from mental health issues. This article highlights the essential points of an employer's duty to accommodate employees with mental disabilities in the workplace.
Recognizing Potential Mental Health Issues
Under the BC Human Rights Code (the "Code"), employers have a duty to accommodate employees who suffer from a mental disability. Mental disorders include mental health conditions like depression, anxiety disorder and obsessive-compulsive disorder (OCD), among many others. Importantly, ordinary, day-to-day stress or anxiety do not trigger the duty to accommodate.
Recognizing mental disabilities can be particularly challenging for employers, especially when employees are still largely working from home. An employee suffering from depression, for instance, may experience a depressed mood, or a loss of interest or pleasure in daily activities, and may experience problems with sleep, eating, energy, concentration, or self-worth. These feelings typically persist for longer than two weeks.
Employees who experience a mental illness may withdraw from others, act in unexpected ways, take a lot of time off, or appear less productive than usual. This can strain relationships with supervisors and others in the workplace.
Knowing when the Duty to Inquire Arises
Typically, the duty to accommodate arises where an employee has made their employer aware of a particular medical issue that requires accommodation in the workplace. However, the duty to accommodate has also been found where the employer knew, or ought to have known, that an employee was suffering from a disability.
Where an employer suspects that an employee's misconduct or other undesirable behaviour may be the result of a mental disability, the employer has a "duty to inquire" about the situation before taking any steps that would negatively affect the employee.
In KB v SS, 2016 BCHRT 61, the BC Human Rights Tribunal held that behaviour which is sufficiently abnormal or "bizarre" can trigger the duty to inquire. Examples include:
- changes from past consistent behaviour;
- work performance which is out of the ordinary for that employee;
- decreased interest or involvement in work;
- lack of cooperation or a general inability to work with colleagues;
- decreased productivity;
- increased absences; and
- difficulty concentrating, making decisions, or remembering things.
Not every unusual action or odd behaviour will require an inquiry into accommodation. The important question is whether the employee's behaviour was "so outrageous, out of character or unexpected" that it should have alerted the employer to the possible presence of a mental disability.
Where the employer fails to make such inquiries and proceeds to terminate, or otherwise cause a negative impact on an employee because of their behaviour, the employer's conduct may breach of the Code for failure to accommodate.
Requesting Medical Information
When an employee discloses that they have a mental disability, the employer has a right to ask for medical information to support the request for leave or accommodation. The employee has a corresponding duty to facilitate accommodation and provide the requested medical information.
The employer is only entitled to information that is reasonably necessary to assess the right to, or requirement for, a leave or accommodation.
Employers typically do not have a right to an employee's detailed medical information such as diagnosis, cause, or treatment, unless the information is relevant to the accommodation requested. Employers are also generally not entitled to contact the employee's physician directly or to access the employee's medical records.
An employer may have a right to request further medical information in certain situations, such as where the employee cannot attend at work but can participate in other activities, or where the doctor's notes are conflicting or vague, or come from different doctors each time.
When an employer receives medical information, it is important that the information is only shared with those who need to know, such as supervisors, human resources department, or the company's insurer. Failure to protect an employee's medical information constitutes a breach of the employee's privacy rights and may lead to liability.
The Extent of the Duty to Accommodate
The duty to accommodate requires employers to make reasonable changes to the workplace or to workplace standards so long as the accommodation does not impose undue hardship.
Examples of accommodations include modifying the employee's workstation, providing adaptive equipment, rescheduling shifts, providing leaves of absences or time off work to attend treatment or counselling, removing taxing parts of the job, reducing hours, or tolerating some absenteeism or relapse. Relapses are in fact to be expected in the case of an employee with addiction, and should be planned for and managed.
Accommodations do not entitle an employee to under-perform or engage in misconduct, absent a link to a protected ground of discrimination. Employers are still entitled to manage the workplace, including disciplining an employee with a disability for misconduct that is not connected in any fashion to the disability being accommodated.
Employers are expected to endure some hardship when accommodating employees. However, employers are not required to create a new job for the employee, tolerate excessive absenteeism or substandard performance, or keep an employee in a position where they can no longer perform their "essential duties".
Whether an accommodation reaches the level of undue hardship will depend on the facts of each case. The threshold for undue hardship is a high one and, in the majority of cases, the employer will be required to accommodate the employee despite what they see as an undue hardship.
Where an employee specifically requests an accommodation and has the medical to support the request, employers generally have little difficulty in working with the employee to ensure they are appropriately accommodated in the workplace. Where significant difficulties arise is where an employee's disciplinable behaviour in the workplace may or may not be attributed to a disability; where an employee is not adequately participating in the search for accommodation; or where the accommodations requested are simply not possible. It is in these cases that employers must walk a very fine line and take all necessary precautions to ensure their behaviour does not run afoul of the Code.
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.